UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


em 


w 


THE 

GRAND     JURY 


An  Essay 


AWAVDED    THE    PETER    STEPHEN    DUPONCEAU    PRIZE    BY    THE 

LAW  ACADEMY  OF  PHILADELPHIA 


BY 


GEORGE  J.  EDWARDS,  JR, 


OF   THE   PHILADELPHIA   BAR. 


PHILADELPHIA  : 

GEORGE  T.  BISEL  COMPANY 
LAW  BOOKSELLERS,  PUBLISHERS  AND  IMPORTERS 
1906 


T 
Ei  "lUVJe 

Y\0b 


COPYRIGHT   1906 

BY 
GEORGE  T.  BISEL  COMPANY 


' 


To  THE  LAW  ACADEMY  OF  PHILADELPHIA: 

As  the  Committee  of  your  Faculty  requested  to  exam- 
ine and  report  upon  the  essays  submitted  for  the 
Annual  Prize  offered  by  the  Law  Academy,  we  desire 
to  inform  you  that  we  have  carefully  read  and  com- 
pared the  two  essays  which  have  been  placed  in  our 
hands,  one  submitted  under  the  nom  de  plume  "Law- 
t  yer,"  and  the  other  under  that  of  "American,"  and  that 
the  result  of  our  examination  is  as  follows:— 

1.  We  find  that  both  essays  are  in  form  and  substance 
excellent  and  very  creditable  to  the  Academy. 

2.  We  find  that,  of  the  two,  the  essay  signed  "Law- 
yer" is  the  better,  and  evinces  the  greater  labor  and 
research  and  is  worthy  of  the  prize  offered. 

3.  We,  therefore,  recommend  that  the  prize  offered 
by  the  Academy  be  awarded  to  the  writer  of  the  essay 
signed  "Lawyer,"  whoever  he  may  be. 

Although  in  strictness,  it  does  not  fall  within  our 
province,  we  feel  that  we  ought  not  to  omit  this  oppor- 
tunity of  expressing  our  approval  of  the  subject  chosen 
for  this  year's  prize  essay.  Not  only  is  it  extremely 
interesting,  from  an  historical  standpoint,  but  it  is  one 
of  great  practical  importance.  Since  Mr.  Furman 
Sheppard  prepared  his  "Manual  for  Grand  Juries"  in 
1875,  of  which  but  a  few  copies  are  now  in  existence, 
no  work  of  any  importance,  which  deals  in  a  practical 
way  with  the  Grand  Jury  System  as  it  is  in  force  in  this 
Commonwealth,  has  been  published.  The  essay  to 

iii 


IV  REPORT  OF  JUDGES. 

which  we  have  recommended  the  award  of  this  prize 
contains  a  vast  amount  of  valuable  information  on  the 
subject  and  with  a  few  slight  alterations  and  additions 
(incorporating  the  points  decided  by  the  Superior 
Court  in  the  case  of  Commonwealth  vs.  Brown,  which 
was  decided  after  these  essays  were  handed  in)  might 
be  made  a  useful  handbook  for  those  concerned  with 
practice  in  the  Criminal  Courts,  and  we  suggest  that 
the  Academy,  if  it  sees  its  way  clear  to  do  so,  take  steps 
to  have  it  printed  for  the  use  of  the  Bar. 

(Signed)  CHAS.  Y.  AUDENRIED, 

ROBERT  N.  WILLSON, 
ABRAHAM  M.  BEITLER. 

Philadelphia,  May  11,  1904. 


PREFACE. 

THIS  essay  was  originally  written  with  particular 
reference  to  the  law  relating  to  the  grand  jury  in  Eng- 
land, Pennsylvania  and  the  United  States  Courts. 
After  the  committee  by  whom  it  was  read  had  reported 
favorably  upon  it,  the  suggestion  was  made  that  its 
scope  be  enlarged  so  as  to  make  the  work  applicable  to 
all  of  the  states.  This  suggestion  was  communicated 
to  Judge  Audenried,  the  Chairman  of  the  Committee, 
and  received  his  approval. 

In  effecting  this  change  it  has  been  found  necessary 
to  make  few  alterations  in  the  text.  So  far  as  the  com- 
mon law  principles  relating  to  the  grand  jury  are  in 
force  in  the  various  states,  the  law  and  the  decisions 
thereon  are  generally  uniform.  In  such  states  as  have 
adopted  a  code  of  criminal  procedure,  the  common  law 
principles  relating  to  the  grand  jury  constitute  an 
important  part  of  the  code,  and  the  decisions  there- 
under, in  such  instances,  will  be  found  to  be  in  har- 
mony with  the  decisions  at  the  common  law.  Only 
where  the  common  law  has  been  superseded  by  statute 
do  we  find  any  material  conflict  in  the  decisions,  and 
this  is  due,  in  large  measure,  to  differences  in  the  con- 
stitutions or  statutes  of  the  various  states.  By  adding 
the  citations  of  the  state  court  decisions  in  the  foot 
notes,  with  occasional  additions  to  the  text  where  the 
rulings  of  the  courts  may  be  regarded  as  of  local  appli- 
cation only,  the  author  trusts  the  work  has  been  made  of 
more  general  utility  than  when  originally  submitted  to 
the  committee. 

While  the  subject  of  juries  has  received  careful 
attention  from  legal  writers,  and  within  the  scope  of 


VJ  PREFACE. 


their  work  the  law  as  to  grand  juries  has  been  consid- 
ered fully,  sufficient  attention  has  not  been  given  to  the 
historical  growth  of  the  grand  jury.  In  this  essay  the 
origin,  history  and  development  of  the  grand  jury  have 
been,  therefore,  considered  at  length.  The  history  of 
the  grand  jury  is  closely  interwoven  with  that  of  the 
petit  jury,  while  the  judicial  records  during  its  infancy 
are  very  meagre  and  confusing. 

In  tracing  its  historical  development,  much  must  be 
left  to  surmise,  and  this  necessarily  has  resulted  in  con- 
flicting opinions.  Where  doubt  has  arisen,  the  author 
has  endeavored  to  present  the  reasons  upon  which  his 
conclusions  are  based,  and  in  all  cases  has  sought  to  treat 
his  subject  in  the  light  of  the  conditions  which  he  con- 
ceives existed  at  the  period  of  which  he  treats.  To  pre- 
sent the  matter  as  clearly  as  possible,  the  method  has 
been  adopted  of  showing  the  character  of  trial  awarded 
with  relation  to  the  manner  of  instituting  the  prosecu- 
tion. By  so  doing,  it  becomes  possible  to  trace  the  de- 
velopment of  the  grand  jury  separate  and  apart  from 
the  petit  jury  and  thus  the  likelihood  of  confusing  the 
action  of  these  bodies  in  the  early  stages  of  their  exist- 
ence is  in  large  measure  avoided. 

The  author  desires  to  express  his  thanks  to  Carlyle 
H.  Ross,  Esq.,  of  the  Philadelphia  Bar,  for  his  valua- 
ble assistance  in  the  preparation  of  the  index  to  this 
book. 

He  also  acknowledges  his  appreciation  of  the  criti- 
cism and  suggestions  of  John  M.  Gest,  Esq.,  and  his 
obligation  to  Luther  E.  Hewitt,  Esq.,  Librarian  of  the 
Law  Association,  for  his  interest  in  the  preparation  of 
this  work.  G.  J.  E.,  JR. 

March  20,  1906. 


Table   of  Contents 


PART  I. 
ITS  ORIGIN,  HISTORY  AND  DEVELOPMENT. 

An  institution  of  English-speaking  countries  I 

Of  historic,  political  and  legal  interest  I 

Extravagantly  praised  and  bitterly  condemned  I 

Differing  opinions  as  to  origin  I 

Law  of  Ethelred  II.  a 

The  petit  jury  a  Norman  institution  a 

Nambda   and   Sectatores  3 
Ancient  Norman  and  English  methods  of  bringing  offenders  to  justice      3 

The  custom  of  weregild  4 

Compurgation  4 

English  system  of  frank-pledge  4 

Statute  of  Ethelred  II,  declaratory  of  existing  law  5 

Fixes  number  composing  inquest  at  twelve  6 

Lord  Coke's  view  of  the  number  of  twelve  6 

Appeal  promotes  importance  of  inquest  7 

Accusing  body  confirmed  by  Assize  of  Clarendon  7 

The  itinerant  courts  created  7 

The  implied  prohibition  abolishes  compurgation  .8 

Justices  of  the  curia  regis  become  sheriffs  8 

Accusing  body  confirmed  by  Assize  of  Northampton  8 

The  kingdom  divided  into  six  circuits  9 

The  accusing  body  in  the  time  of  Glanville  9 

Offences  prosecuted  by  appeal  or  by  presentment  on  suspicion  10 

Authority  to  make  inquisitions  concerning  nuisances  10 

The  inquest  to  answer  capitula  1 1 

Rolls  of  the  Itinerant  courts  n 

When  inquest  exercised  right  of  presentment  II 

Presentments  made  where  person  appealed  13 

How  appeal  was  made  ia 

Case  of  Ash  ford  v.  Thornton  13 

Inquiry  of  the  four  townships  after  presentment  14 

Their  office  not  clear  14 

Glanville  silent  regarding  them  14 

No  part  of  inquest  in  Bracton's  time  IS 

vii 


Ylli  TABLE  OF  CONTENTS. 

PACK 

Townships  act  only  after  presentment  on  suspicion  15 

Optional  with  justices  to  inquire  of  four  townships  16 

Mr.   Forsyth's  opinion  16 

Methods  of  trial  in  force  16 

Trial  by  battle  upon  appeals  17 

Trial  by  jury  17 

Allowed  by  payment  of  money  to  the  king  17 

Writs  awarding  inquest  not  to  be  sold  17 

Doubted  if  this  applied  to  criminal  cases  17 

Ordeal  abolished  by  Fourth  Lateran  Council  18 

Itinerant  justices  in  doubt  as  to  mode  of  trial  18 

Directed  to  use  their  discretion  18 

Bracton  describes  methods  of  prosecuting  offenders  19 

Procedure  in  holding  an  eyre  19 

Oath  of  the  principal  juror  20 

Oath  of  his  fellow  jurors  20 

Pledge  of  secrecy  21 
Method  of  trial  with  relation  to  manner  of  instituting  prosecution          21 

Appellee  permitted  to  put  himself  upon  the  country  21 

Trial  by  same  jurors  who  accused  doubted  21 

Defendant  permitted  to  challenge  for  cause  22 

Oath  of  the  trial  jurors  22 

Four  townspeople  act  with  petit  jurors  23 

Difference  between  oaths  of  accusing  and  trial  jurors  23 

Trial  jury  a  jury  of  witnesses  24 

Doctrine  of  afforciament  24 

Instances  of  trial  by  special  petit  jury  24 

Accusing  jury  in  the  time  of  Britton  25 

Increase  of  its  duties  25 

Jury  enlarged  in  reign  of  Edward  III.  26 

Le  graunde  inquest  26 

Decline  of  the  hundred  inquests  26 

The  grand  jury  a  growth  26 

Completion  of  period  of  formation  27 

An  arm  of  the  government  27 

Effect  of  the  requirement  of  secrecy  27 

Independence  of  grand  jury  established  28 

Trial  of  Stephen  College  28 

Attempt  to  indict  Earl  of  Shaftesbury  29 

Reason  for  the  ignoramus  considered  29 
Attempt  to  reform  panels  of  grand  jurors  under  Statute  3,  Henry  VIII      30 

Sheriffs  demur  but  finally  yield  30 
Chief  Justice  McKean  attempts  to  overawe  Pennsylvania  grand  jury         31 

The  grand  jury  in  America  31 

Refusal  to  indict  John  Peter  Zenger  32 

No  provision  for  grand  jury  in  Constitution  of  the  United  States  32 


TABLE  OF  CONTENTS.  IX 

MM 

Adoption  of  Amendment  V  to  remedy  omission  32 

Applies  only  to  offences  triable  in  United  States  Court*  33 
Fourteenth  amendment  does  not  prohibit  States  from  prosecuting  by 

information  33 

Prosecution  by  information  in  Pennsylvania  rarely  employed  34 

Present  anomalous  position  of  grand  jury  34 

Attacks  on  the  grand  jury  35 

Preliminary  hearing  makes  its  work  superfluous  35 
Unwise  to  have  prosecution  sustained  without  sanction  of  impartial 

body  36 

Indictments  improperly  ignored  or  found  36 

Innocent  defendant  not  harmed  37 

Judgment  of  committing  magistrate  should  be  reviewed  37 

English  stipendiary  magistrates  38 
Combined  knowledge  of  grand  jurors  productive  of  correct  findings  39 

Irresponsibility  of  the  grand  jury  40 
Oppressive  use  of  grand  jury  caused  adoption  of  Statute  3,  Henry  VIII. 

C.  12  41 

Scarlet's  Case  42 

No  injury  from  secrecy  of  the  grand  jury  42 

Conservative  view  of  institution  expressed  by  Chief  Justice  Shaw  43 

Grand  jury  abolished  in  some  states  44 

Power  of  the  California  grand  jury  44 

Conservatism  of  the  Eastern  States  44 

Judge  King's  warning  44 


PART  II. 
ORGANIZATION  AND  QUALIFICATIONS. 

Number  composing  grand  jury  45 

Only  twenty-three  sworn  45 

Reason  of  the  rule  45 

Presence  of  greater  number  will  vitiate  indictment  46 

Empaneling  statutory  number  46 

In  re  Wilson  47 

Selection  of  grand  jurors  regulated  by  statute  47 

General  method  of  selection  48 

Failure  to  summon  at  designated  time  48 

Requisites  of  the  venire  49 

Errors  in  names  of  grand  jurors  49 

Return  to  venire  49 

Failure  to  sign  return  50 

May  be  amended  50 

Deficiency  in  number  of  grand  jurors  50 

Judge  not  to  furnish  names  of  talesmen  50 


X  TABLE  OF  CONTENTS. 

urn 

Record  must  show  deficiency  5* 

Juror  appearing  after  grand  jury  begins  duties  may  act  51 

When  tales  may  issue  S2 

Selection  of  talesmen  from  improper  class  52 

Selection  of  grand  jurors  in  Pennsylvania  52 

Manner  of  drawing  53 

How  summoned  54 

Sheriff's  return  to  venire  54 

Grand  jury  detained  after  end  of  term  54 

When  tales  may  issue  54 

Number  of  talesmen  to  be  summoned  54 

Drawing  grand  jurors  in  Federal  Courts  55 

How  summoned  55 

Manner  of  supplying  deficiency  55 

Number  to  be  summoned  56 

Indictment  sustained  if  twelve  present  and  concur  56 

Summoning  grand  jurors  from  part  of  district  56 

Not  in  conflict  with  sixth  amendment  57 

Selection  of  grand  jurors  in  England  57 

Irregularity  in  drawing  57 

Absence  of  officer  when  drawing  made  58 

De  facto  officers  and  grand  jurors  58 

Case  of  People  v.  Petrea  58 

By  whom  grand  jurors  summoned  59 

Presumption  that  official  acts  are  lawfully  performed  59 

Qualifications  of  grand  jurors  60 

Views  of  Bracton,  Chitty  and  Coke  60 

Qualifications  defined  by  II  Hen.  IV.  61 

Present  qualifications  of  English  grand  jurors  61 

In  Pennsylvania  61 

When  grand  juror  must  be  a  freeholder  62 

To  have  no  suit  against  any  man  62 

Nor  be  charged  with  any  offence  63 

In  some  instances  must  be  qualified  voters  63 

Shall  have  paid  taxes  for  previous  year  63 

Women  may  not  serve  in  State  of  Washington  63 

Qualifications  of  Federal  grand  juror  63 

Alien  not  competent  64 

When  advantage  may  be  taken  of  irregular  proceedings  64 

When  right  of  challenge  wrongfully  refused  65 

Causes  of  challenge  to  array  66 

When  array  will  not  be  quashed  67 

Time  of  making  motion  in  Federal  Courts  68 

When  challenge  to  array  does  not  extend  to  entire  panel  69 

Legislature  may  determine  time  of  making  challenge  70 

Person  making  challenge  must  be  under  prosecution  70 


TABLE  OF  CONTENTS.  XI 

PACK 

State's  Attorney  cannot  challenge  panel  70 

But  may  challenge  individual  jurors  TO 

Defendant  failing  to  challenge  waives  right  71 

By  whom  it  may  be  made  71 

Exemption  from  grand  jury  service  72 

Distinction  between  disqualifications  and  exemptions  72 

Objections  to  personal  qualifications  of  grand  juror  73 

Rule  in  Federal  Courts  73 

Case  of  Crowley  v.  United  States  74 

Challenge  for  favor  a  common  law  right  74 

No  right  of  challenge  in  England  75 

Juror  incompetent  when  drawn  may  become  qualified  75 

Challenges  for  individual  disqualification  76 

Prosecutor  as  grand  juror  78 

When  forming  and  expressing  opinion  disqualifies  78 

Submission  of  new  bill  to  same  grand  jury  78 

Case  of  State  v.  Gillick  79 

Petit  juror  on  former  trial  as  grand  juror  80 

Grand  juror  related  to  prosecutor  80 

When  change  of  domicile  will  disqualify  81 

Religious  belief  will  not  disqualify  81 

Grand  juror  cannot  be  examined  on  voir  dire  81 

When  triers  appointed  on  challenge  for  favor  82 

Peremptory  challenges  not  allowed  82 

Exclusion  of  competent  grand  juror  by  district  attorney  84 

Court  may  excuse  on  application  84 

And  dismiss  for  cause  84 

Presumption  that  jurors   were  excused  85 

Challenges  may  be  made  after  grand  jury  sworn  85 

And  after  indictment  found  85 

By  motion  to  quash  and  plea  in  abatement  86 

Court  will  not  quash  where  defendant  not  prejudiced  86 

Objection  too  late  after  general  issue  pleaded  87 

Cannot  be  raised  in  collateral  proceeding  88 

Empaneling  of  grand  jury  88 

Must  be  shown  by  record  89 

Two  grand  juries  at  same  term  illegal  89 

Empaneling  grand  jury  where  statute  changed  89 

SeJection  of  foreman  90 

Appointment  to  be  shown  by  record  90 

Selection  of  clerk  91 

Manner  of  swearing  grand  jurors  91 

Administration  of  oath  to  be  shown  by  record  92 


Xll  TABLE  OF  CONTENTS. 

PAGE 

PART  III. 
THE  OATH,  POWERS  AND  DUTIES  OF  GRAND  JURORS. 

The  oath  as  his  commission  94 
Form  of  oath  administered  to  foreman  94 
Short  form  taken  by  the  jurors  generally  97 
Oath  of  the  Twelve  Thanes  98 
The  oath  in  Bracton's  period  98 
In  the  time  of  Britton  .  99 
Book  of  Oaths  of  Cromwell's  period  99 
Oath  as  limiting  grand  juror's  power  99 
Right  to  institute  all  proceedings  100 
Views  of  Attorney  General  Bradford  100 
The  Pennsylvania  rule  IOI 
Judge  Addison's  charge  101 
"Diligently  inquire  and  true  presentment"  defined  101 
Charge  of  Chief  Justice  Taney  102 
Chief  Justice  Chase  construes  powers  of  Federal  grand  jury  102 
May  not  summon  witnesses  103 
When  additional  testimony  will  be  submitted  104 
Inquisitorial  powers  in  certain  states  104 
Presentment  made  when  evidence  heard  105 
Evidence  to  warrant  finding  true  bill  105 
Limitation  upon  their  inquiry  105 
Judge  King's  opinion  106 
Mr.  Justice  Field's  opinion  108 
Wherein  the  powers  of  grand  jurors  in  Pennsylvania  and  the  Fed- 
eral Courts  coincide  no 
Additional  powers  of  Federal  grand  jurors  no 
District  Attorney's  right  to  prefer  indictment  no 
Seldom  exercised  without  leave  of  court  in 
Case  of  Rowand  "v.  Commonwealth  1 12 
The  legality  of  such  action  questioned  1 12 
Sustained  by  Judge  Pratt  113 
His  opinion  not  supported  by  the  authority  cited  113 
Refusal  to  quash  equivalent  to  prior  sanction  114 
District  Attorney's  bill  to  be  earmarked  114 
Right  to  file  information  in  Federal  Courts  115 
Adopted  in  certain  states  115 
Grand  jury  as  defender  of  liberty  of  the  press  115 
Public  press  attacks  grand  jury  116 
Grand  juror's  oath  enjoins  secrecy  116 
Purpose  of  this  requirement  116 
Originally  not  a  grand  juror's  prerogative  116 
Cases  of  Scarlet  and  Lord  Shaftesbury  117 
Case  of  State  v.  Branch  117 


TABLE  OF   CONTENTS.  Xlll 

MM 

Grand  jurors  may  testify  in  certain  cases  118 

But  may  not  impeach  their  finding  119 

Provision  for  secrecy  includes  district  attorney  120 

Does  not  include  witnesses  120 

Grand  juror  refusing  to  disclose  how  he  voted  not  in  contempt  121 

Duties  imposed  upon  grand  jurors  by  statute  121 

Incorporation  of  boroughs  121 

Erection  of  county  buildings  and  bridges  121 

In  Connecticut  to  inform  justices  of  peace  of  violations  of  law  122 

Examination  of  county  books  122 

And  sufficiency  of  official  bonds  122 

In  Vermont  to  arrest  without  warrant  for  violation  of  liquor  laws  122 

Grand  jurors  not  sworn  in  any  cause  122 


PART  IV. 

How  THE  GRAND  JURY  TRANSACTS  BUSINESS  AND  ITS  RELATION  TO  THE 

COURT. 

The  charge  of  the  court  124 

A  means  of  communication  with  the  public  124 

When  a  supplementary  charge  may  be  delivered  125 

First  suggested  on  the  trial  of  Aaron  Burr  125 

Judge  Cranch's  opinion  126 

Part  of  grand  jury  may  be  specially  charged  126 

Use  of  inflammatory  language  126 

Attendance  of  district  attorney  on  grand  jury  127 

When  his  presence  is  improper  128 

Presence  of  private  counsel  improper  128 

Mr.  Justice  Clark's  opinion  as  to  presence  of  district  attorney  129 

The  "right"  of  the  district  attorney  to  be  present  129 

Presentment  defined  130 
Whether  defendant  may  be  tried  upon  presentment  without  indictment  131 

Indictment  defined  131 

Presentment  not  found  upon  testimony  of  witnesses  131 

Indictment  void  unless  evidence  heard  132 

Procuring  attendance  of  witnesses  132 

Production  of  documents  133 

Court  to  determine  their  relevancy  133 

Witness  not  compelled  to  incriminate  himself  133 

Must  claim  constitutional  privilege  133 

Where  witness  refuses  to  testify  133 

Signing  of  indictment  by  district  attorney  134 

Invalid  where  signed  by  improper  official  134 

Witnesses'  names  endorsed  on  bill  135 


XIV  TABLE  OF   CONTENTS. 

PAGE 

Prosecutor's  name  to  be  endorsed  I3S 

When  not  essential  136 

Governor  of  state  endorsed  as  prosecutor  136 

When  witnesses'  names  not  endorsed  136 

Witnesses  must  be  sworn  137 

When  foreman  may  administer  oath  137 

Indictment  quashed  if  witnesses  not  sworn  138 

But  judgment  will  not  be  arrested  138 

Grand  jurors  may  interrogate  witnesses  139 

Presence  of  improper  person  in  grand  jury  room  139 

Defendant's  witness  not  to  appear  140 

Incompetent  evidence  not  to  be  received  142 

When  an  indictment  will  be  quashed  upon  this  ground  143 

When  sustained  145 

All  witnesses  must  be  heard  before  bill  ignored  146 

The  finding  of  the  grand  jury  147 

Twelve  must  concur  147 

Cannot  find  for  part  of  a  count  147 

Finding  endorsed  on  bill  148 

When  to  be  signed  by  foreman  148 

Variance  in  name  of  foreman  149 

Omission  of  words  "a  true  bill"  149 

Reconsideration  of  finding  150 

Sufficient  endorsement  of  finding  150 

Failure  to  endorse  finding  151 

Date  of  finding  to  be  endorsed  on  bill  151 

Defendant  indicted  by  initials  of  Christian  name  152 

If  bill  ignored  new  bill  may  be  submitted  152 

Mr.  Justice  Woodward's  opinion  152 

When  leave  of  court  to  be  obtained  153 

Manner  of  returning  indictments  into  court  154 

Obtaining  assent  of  grand  jury  to  amendment  of  matter  of  form  154 

Pennsylvania  Act  of  Mlarch  31,  1860  154 

Altering  indictment  in  matter  of  substance  154 

Ex  Parte  Bain  155 

Bill  not  read  to  grand  jury  155 

Findings  need  not  be  read  in  open  court  156 

Failure  to  record  finding  156 

Bills  to  be  filed  after  finding  recorded  157 

Report  of  grand  jury  upon  completion  of  their  labors  157 

Recommendations  outside  their  authority  157 

The  practice  condemned  158 

Libellous  statements  in  report  of  grand  jury  158 

Expunging  report  from  minutes  159 

Discharge  of  grand  jury  160 

Resummoning  after  discharge  -.160 


TABLE  OF  CONTENTS.  XV 

i'A    , 

Grand  juror  not  to  disclose  secrets  of  grand  jury  room  162 

Attempt  to  influence  grand  jurors  162 

Case  of  Commonwealth  i:  Crans  162 

Control  of  court  over  grand  jury  163 

Fining  of  Sir  Hugh  Wyndham  illegal  164 

Grand  jury  uncontrolled  in  their  finding  164 

Extent  of  court's  control  164 

Contempt  by  grand  juror  165 

Misconduct  of  grand  juror  166 

Exemption  from  personal  liability  for  official  acts  166 


Table  of  Text  Books  and  Miscellaneous 

Articles 


PACK 

Abolition  of  the  Grand  Jury,  (C.  E.  Chiperfield)  5  Am.  Law,  487  40 

Addison's  Charges  to  Grand  Juries,  (Add.  Rep.  Appendix) 

i,  101,  105,  123,  131,  141,  160 

Bacon's  Abridgement,  Indictment  C.  84 

Bacon's  Abridgement,  Juries  64 

Bentham  Rationale  of  Judicial  Evidence  i,  35,  116 

Bispham's  Principles  of  Equity  8 

Blackstone's  Commentaries 

i,  3,  4,  5,  8,  28,  45,  61,  64,  105,  113,  116,  118,  130,  131,  147,  152 
Book  of  Oaths  99 

Boston  Law  Reporter.     (Vol.  I,  p.  4)  120 

Bouvier's  Law  Dictionary  (Rawle's  Revision)  3,  5 

Bracton-de  legibus  (Sir  Travers  Twiss  ed.) 

9,  10,  n,  12,  13,  19,  20,  21,  22,  23,  24,  27,  60,  99 

Britton  (Legal  Classic  Series)  9,  25,  27,  99 

Charge  to  Grand  Jury  (Chief  Justice  Chase),  30  Fed.  Cas.  980  102 

Charge  to  Grand  Jury,  (Mr.  Justice  Field)  30  Fed.  Cas.  992 

101,  103,  105,  108,  127,  128,  130,  162 

Charge  to  Grand  Jury,  (Chief  Justice  Shaw)  8  Am.  Jurist  216         43,  105 
Charge  to  Grand  Jury,  (Chief  Justice  Taney)  30  Fed.  Cas.  998  102 

Chitty's  Criminal  Law 

60,  61,  64,  70,  103,  104,  105,  118,  142,  144,  147,  148,  152,  154,  155,  167 
Chitty's  English  Statutes  57,  61 

Coke's  Institutes  41,  60,  105 

Coke  on  Littleton  6 

Crabb's  History  of  English  Law  2,  4,  22 

Davis'  Criminal  Law  in  Virginia  105 

Davis'  Precedents  of  Indictments  36,  105,  142,  158,  161 

Dickinson's  Quarter  Sessions  (sth  ed.)  104 

East's  Pleas  Crown  144 

Essay  on  the  Law  of  Grand  Juries  (E.  Ingersoll)  i,  4,  7,  22,  116 

Fiske  Beginnings  of  New  England  31 

Fiske — The  Dutch  and  Quaker  Colonies  in  America  32 

Forsyth— Trial  by  Jury  4,  7,  8,  16,  17,  21,  24,  27 

Glanville  (Beames  Translation — Legal  Classic  Series)  9,  10,  n,  15 

Grand  Juries,  29  L.  T.  21  I,  35,  38 

xvi 


TABLE  OF  TEXT  BOOKS.  XV11 

MM 

Grand  Juries,  67  L.  T.  381  39 

Grand  Juries  and  the  Pleas  of  Criminals   (John  Lascelles  Law  Mag. 

and  Rev.,  Vol.  4)  2,  6 

Grand  Juries  in  the  United  States  (7  Law  Journal  729)  44 

Grand  Jurors  as  Witnesses  (M.  W.  Hopkins,  21  Cen.  L.  J.  104)  118 

Greenleaf  on  Evidence  119,  120 

Growth  of  the  Grand  Jury  System  (J.  Kinghorn,  Law  Mag.  &  Rev.) 

2,  3,  29,  3i  127 

Hale— Pleas  Crown  64,  105,  133,  147,  148,  164 

Hallam's  Constitutional  History  of  England  29 

Hallam's  Middle  Ages  10,  18,  24 

Hawkins— Pleas  Crown  41,  60,  61,  64,  70,  142,  144,  147,  148 

Francis  Hopkinson's  Works  31,  105,  164 

Huband — Grand  Jury  in  Ireland  2,  4,  n,  16 

Jury  and  Its  Development   (Prof.  J.  B.  Thayer,  5  Harv.  Law  Rev. 

251)  4,  17,  18 

Lesser — History  of  the  Jury  System  7,  9,  16,  17,  18,  24,  31 

Maitland's  Gloucester  Pleas  19 

North's  Examen  31 

Older  Modes  of  Trial  (Prof.  J.  B.  Thayer,  5  Harv.  Law  Rev.  265)    6,  8,  9 
On  Grand  Juries  (E.  E.  Meek,  85  L.  T.  395)  39 

Opinions  of  Attorneys  General  U.  S.  100 

Origin  of  Grand  Juries  (E.  Anthony,  i  Chicago  Leg.  News)  4 

Palgrave's  English  Commonwealth  10 

Pennsylvania  Colonial  Cases   (Hon.  S.  W.  Pennypacker)  31 

Pollock  and  Maitland's  History  of  English  Law  16 

Reeves  History  English  Law  2,  3,  4,  9,  10,  n,  22,  26,  30 

Robert's  Digest  of  British  Statutes  23,  64 

Security  of  Englishmen's  Lives,  etc.  (Lord  Somers)  i,  105 

Select  Pleas  of  the  Crown  (Selden  Society)  6,  II,  13,  14,  16,  24,  25 

Smith's  Laws  105 

Spence — Equitable  Jurisdiction  of  the  Court  of  Chancery  2,  4 

Stubb's  Select  Charters  4,  6,  17,  18 

The  Literary  Digest  (Vol.  30,  p.  50)  44 

Thompson  and  Merriam  on  Juries  44,  75,  121,  161 

Trials  per  Pais   (Giles  Duncombe)  64,  120 

Watson's  Annals  of  Philadelphia  32 

Wharton's  Criminal  Law  (7th  ed.) 

45,  56,  64,  68,  77,  90,  92,  100,  104,  105,  136,  137,  139,  142,  144,  145,  147, 

148,  154,  164,  165 

Wilkin's  Leges  Anglo  Saxonicae  2,  4,  5,  98 

Jas.  Wilson's  Works  I,  94,  100,  105,  124 


Table  of  Statutes  and  Constitutions 


England. 

Statute  of  Ethelred  II.  (A.  D.  978-1016)  2 

Assize  of  Clarendon  (A.  D.  1166)  7 

Assize  of  Northampton  (A.  D.  1176)  7,  8 

Magna  Charta  (King  John)  Article  36  17 

Magna  Charta  (Henry  III)  Article  29  17,  39 

25  Edw.  Ill,  Stat.  5,  c.  5  23 

ii  Hen.  IV,  c.  9  61 

3  Hen.  VIII,  c.  12  30,  41 

59  Geo.  Ill,  c.  46  13 

6  Geo.  IV,  c.  50  57,  61 

United  States. 

Constitution,  Art  III,  Sec.  3  144 

Amendment  V.  32,  115,  131,  147 

Amendment  XIV.  33,  66,  67,  147 

Revised  Statutes,  Sec.    721  63 

Sec.    800  55 

Sec.    801  55 

Sec.    802  57 

Sec.    808  45,  55 

Sec.    811  160 

Sec.    812  63,  73 

Sec.    820  63,  73 

Sec.  1021  147 

Sec.  1022  115 

Sec.  1025  74,  154 

Sec.  1671  73 

Act  July  20,  1840,  5  Stat.  394  88 

June  30,  1879,  21  Stat.  43  55,  63 

March  22,  1882  82 

Alabama. 

Code,  1876,  Sec.  4445  64 

Sec.  4767-4768  122 

Code,  1896,  Sec.  5024  95 

Act  February  28,  1887  65 

March  2,  1901  65 

xviii 


TABLE  OF  STATUTES  AND  CONSTITUTIONS.  XIX 

PAGB 

Arizona. 

Code  Cr.  Proc.,  Sec.  800  98 

Arkansas. 

Statutes,  Ch.  49,  Sec.  3041  96 

California. 

Constitution  1879  IJO 

Art.  I.,  Sec.  8  44 

Penal  Code,  Sec.  903  97 

Sec.  915-929  44 

Sec.  921  105 

Colorado. 

Constitution  1876,  Art.  II,  Sec.  23  44 

Ann.  Statutes  1891,  Ch.  73,  Sec.  2617  97 

Connecticut. 

General  Statutes,  Tit.  20,  c.  12,  Sec.  23  12 

Tit.  54,  c.  281,  Sec.  4795  95 

General  Statutes  1875,  Sec.  i,  p.  531  122 

Sees.  2,  3,  4,  5,  p.  531  122 

Florida 

Revised  Statutes  1892,  Sec.  2808  95 

Sec.  2809  90 

1891,  Sec.  4015  Cl.  5  M7 

Georgia. 

Code  1873,  Sec.    510  122 

Sec.  3919  122 

Sec.  3920  122 

Sec.  4632  130 

Penal  Code  1895,  Sec.  825  95 

Idaho. 

Penal  Code,  Sec.  5293  96 

Illinois. 

Constitution  1870,  Art.  Ill,  Sec.  8  44 

Statutes,  Ch.  78,  Sec.  18  96 

Indiana. 

Constitution,  1851,  Art.  VII,  Sec.  17  44 

Statutes  1825,  p.  21  122 

Code  Cr.  Proc.,  Sec.  1721  96 

Indian    Territory. 

Statutes  Cr.  Proc.,  Ch.  20,  Stc.  1418  98 

Iowa. 

Code,  Sec.  4261  79 

Code  1897,  Sec.  5249  98 

Kansas. 

Statute,  February  12,  1864,  Sec  7  44 

General  Statutes  1897,  Ch.  102,  Sec.  97  96 


XX  TABLE  OF  STATUTES  AND  CONSTITUTIONS. 

PAGJt 

Kentucky. 
Statutes,  Ch.  74,  Sec.  2250  95 

Maine. 

Revised  Statutes,  Ch.  135,  Sec.  4  9° 

Ch.  135,  Sec.  2  92,  94 

Massachusetts. 

Revised  Laws,  Ch.  218,  Sec.  5  92,  94 

Ch.  218,  Sec.  7  90 

Michigan. 

How.  Ann.  Stat,  Sec.  9461  96 

Sec.  9554  44 

Minnesota. 

General  Statutes,  Sec.  5641  96 

Mississippi, 

Coclt,  Sec.  2372  96 

Sec.  2375  64 

Revised  Code  1880,  Sec.  1675  122 

Missouri. 

Revised  Statutes  1899,  Sec.  2489  96 

Sec.  2515  136 

Montana. 
Penal  Code,  Sec.  1761  98 

Nebraska. 

Constitution  1875,  Art.  I,  Sec.  10  44 

Comp.  Stat.,  Sec.  8i'39  96 

Nevada. 
Comp.  Stat,  Sec.  4158  97 

New  Hampshire. 
Pub.  Stat,  Ch.  253,  Sec.  5  94 

New  Mexico. 
Comp.  Laws  1897,  Sec.  967  98 

New  York. 

Crim.  Code,  Sec.  313  70 

Code  Cr.  Prac.,  Sec  245  95 

Sec.  256  144 

Sec.  270  112 

North   Carolina. 
Act  1879,  c.  12  I37 

North  Dakota. 
Revised  Code  1895,  Sec.  8004  98 

Ohio. 

Revised  Statutes,  Sec.  5164  73 

Sec.  7191  96 

Sec.  7207  135 


TABLE  OF  STATUTES  AND  CONSTITUTIONS.  XXI 


Oklahoma. 

Revised  Statutes  1903,  Sec.  5329  98 

Oregon. 

Code,  Sec.  1271  97 

Pennsylvania. 

Constitution  1874,  Art.  I,  Sec.  10  34,  113 

Act.  April    5,  1826  138 

April     i,  1834,  P.  L.  163  121 

April  14,  1834,  Sec.  87,  P.  L.  357  53 

April  14,  1834,  Sec.  149,  P.  L.  366  64 

April  15,  1834,  P.  L,  539  121 

June  16,  1836,  P.  L.  23  116,  165 

April  16,  1840,  Sec.  6,  P.  L.  411  78 

March  i,  1843,  P.  L.  123  53 

May  3,  1850,  P.  L.  654  130,  134 

April  20,  1858,  P.L.  354  53,  62 

April  13,  1859,  P.  L.  595  53 

March  31,  1860,  Sec.  10,  P.  L.  433  137,  138 

Sec.  ii,  P.  L,  427  154 

Sec.  27,  P.  L.  427  135 

Sec.  41,  P.  L.  439  54,  56 

March  13,  1867,  P.  L.  420  53 

April  10,  1867,  P.  L.  62  53,  62 

April  16,  1870,  P.  L.  1199  127 

June  2,  1871,  P.  L.  283  121 

March  18,  1875,  Sec.  i,  P.  L.  28  54 

June  i,  1883,  P.  L.  58  121 

Mky  23,  1887,  Sec.  2,  P.  L.  158  144 

May  26,  1891,  P.  L,  120  121 

Rhode   Island. 

General  Laws,  Ch.  227,  Sec.  34  94 

South  Dakota. 

Code.  Cr.  Proc.,  Sec.  177  98 

Tennessee. 

Statutes  1871,  Sec.  5079  122 

Code  Sec.  5085  81 

Sec.  5833  95 

Texas. 

Code  1898,  Sec.  7058  135 

Code  Cr.  Proc.  1895,  Sec.  397  64 

1897,  Art.  404  95 

Utah. 

.Revised  Statutes,  1898,  Sec.  4708  97 


XX11  TABLE  OF  STATUTES  AND  CONSTITUTIONS. 

PAGB 

Vermont. 

General  Statutes  1862,  Sec.  25,  p.  596  122 

Sec.  33,  p.  600  122 

Statutes,  Ch.  233,  Sec.  5418  94 

Virginia. 

Code,  Tit.  53,  Ch.  195,  Sec.  3980  95 

Code,  Sec.  3991  135 

Washington. 
Code,  Sec.  6809  97 

West  Virginia, 
Code,  Ch.  157,  Sec.  5  96 

Wisconsin. 
Statutes,  Ch.  116,  Sec.  2547  92,  96 

Wyoming. 
Revised  Statutes,  Sec.  5282  97 


Table   of  Cases 


PAGE 

Abram  v.  State,  25  Miss.  589  93 

Abrams,  Ullman  v.,  72  Ky.  738  167 

Adams,  Insurance  Co.  v.,  no  Pa.  553  66 

Adams  v.  State,  28  Fla.  511  63 

Adams  v.  State,  n  Ind.  304.  156 

Adams,  State  v.,  20  Iowa  486  72 

Adams,  State  v.,  40  La.  Ann.  745  128 

Adams,  State  v.,  70  Tenn.  647  104 

Adams  Express  Co.,  Fotheringham  v.,  34  Fed.  Rep.  646                            119 

Addison,  State  v.,  2  S.  C.  356  128 

Agnew  v.  United  States,  165  U.  S.  36  69,  85,  86 

Alabama,  Rogers  v.,  192  U.  S.  226  67 

Alden  v.  State,  18  Fla.  187  149 

Alderson,  State  v.,  10  Yerg.   (Tenn.)  523                                                     49 

Aleck,  State  v.,  41  La.  Ann.  83  128 

Alexander,  State  v.,  35  La.  Ann.  iioo  81 

Allen  v.  Com.  2  Bibb  (Ky.)  210  136 

Allen,  Com.  v.,  14  Pa.  C.  C.  Rep.  546  153 

Allen  v.  Gray,  n  Conn.  95  167 

Allen,  State  v.,  R.  M.  Charlton's  Rep.  (Ga.)  518  155 

Allen,  State  v.,  22  Mo.  318  136 

Allen,  State  v.,  83  N.  C.  680  137 

Allen  v.  State,  77  111.  484  91 

Allen  v.  State,  61  Miss.  627  165 

Allen  v.  State,  5  Wis.  329  103 

Ambrose,  United  States  v.,  3  Fed.  Rep.  283  55 

Ames,  State  v.,  96  N.  W.  330  64,  73,  74 

Anderson  v.  State,  5  Ark.  444  134 

Andrews  v.  People,  117  111.  195  135 

Anonymous,  7  Cow.  (N.  Y.)  563  128 

Antz,  United  States  v.,  16  Fed.  Rep.  119                                                   66 

App  v.  State,  90  Ind.  73  89 

Appeal,  Hartranft's,  85  Pa.  433  no,  143 

Archer,  In  re,  96  N.  W.  442  120,  133 

Armijo,  Territory  v.,  37  Pac.  1117  87 

Armstrong,  State  v.,  167  Mo.  257  49 

Arnold,  People  v.,  15  Calif.  476  69 

xxiii 


XXIV  TABLE  OF   CASES. 

PAQB 

Ashburn  v.  State,  15  Ga.  246  92,  138 

Ashford  v.  Thornton,  i  B.  and  Aid.  405  13 

Austin,  Reg.  v.  4  Cox  C.  C.  385  152 

Avirett  v.  State,  76  Md.  510  66 

Ayles worth  v.  State,  65  111.  301  156 

Ayres,  United  States  v.,  46  Fed.  Rep.  651  56 

Ayrs  v.  State,  5  Cold.   (Tenn.)   26  137 

Bacon,  State  v.,  77  Miss.  366  140 

Bain,  Ex  Parte,  121  U.  S.  i  154,  155 

Baker,  King  v.,  Rowe's  Rep.  of  Int.  Cases  603  166 

Baker,  State  v.,  20  Mo.  338  119,  120 

Baker,  State  v.,  33  W.  Va.  319  128 

Baker  v.  State,  39  Ark.  180  93 

Baker  v.  State,  23  Miss.  243  83 

Baldwin,  In  re,  2  Tyler  (Vt.)  473  84 

Baldwin  v.  State,  126  Ind.  24  104 

Baldwin,  State  v.,  15  Wash.  15  33 

Bales  v.  State,  63  Ala.  30  57 

Banks,  State  v.,  40  La.  Ann.  736  157 

Bannon,  Com.v.,  97  Mass.  214  160 
Barber  v.  State,  46  S.  W.  233                                                            64,  71,  87 

Barger  v.  State,  6  Blackf.  (Ind.)   188  160 

Barker,  Floyd  v.,  12  Co.  23  167 

Barker,  State  v.,  107  N.  C.  913  147 

Barkmann  v.  State,  52  S.  W.  69  71 

Barnes,  State  v.,  73  Tenn.  398  104 

Barnett,  State  v.,  3  Kan.  250  33 
Barney  v.  State,  12  Snredes  &  M.  (Miss.)  68                61,  62,  68,  85,  87,  147 

Barrett,  Territory  v.,  42  Pac.  66  87 

Barron  v.  People,  73  111.  256  56 

Barth,  Territory  v.,  15  Pac.  673  83,  84 

Bartlett  v.  Humphreys,  Hardin  (Ky.)  513  136 

Bartley  v.  People,  156  111.  234  135 

Battle,  State  v.,  126  N.  C.  1036  54 

Bates,  State  v.,  148  Ind.  610  140 

Bates,  United  States  v.,  24  Fed.   Cas.   1042  153 

Beal  v.  State,  15  Ind.  378  103 

Beam  v.  Link,  27  Mo.  261  120 

Beasley  v.  People,  89  111.  571  51 

Season  v.  State,  34  Miss.  602  60 

Beatty,  People  v.,  14  Calif.  566  69,  103 

Beavers  v.  State,  58  Ind.  530  156 

Beckey,  State  v.,  79  Iowa  368  66 

Beebe,  State  v.  17  Minn.  241  120 

Beldham,  Com.  v.,  15  Pa.  Superior  Ct.  33  no 

Bell  v.  State,  42  Ind.  335  88,  89 


TABLE  OF  CASES.  XXV 


Bcllairt/.  State,  6  Blackf.  (Ind.)  104  64 

Belvel,  State  v.  89  Iowa  405  68 

Belvin,  United  States  v.,  46  Fed  Rep.  381  77,'  9° 

Bennet  v.  Watson,  3  M.  &  S.  I  133 

Bennett,  State  v.,  45  La.  Ann.  54  160 

Bennett  v.  State,  62  Ark.  516  139,  140 

Bennett  v.  State,  i  Martin  u  Yerg.  (Tenn.)   133  48 

Bennett  v.  State,  8  Humph.  (Tenn.)  118  156 

Benson  v.  State,  68  Ala.  513  50,  57 

Benson  v.  State,  68  Ala.  544  148 

Benson,  United  States  v.,  31  Fed.  Rep.  896  78 

Bergh's  Case,  Henry,  16  Abb.  Pr.  N.  S.  (N.  Y.)  266  162 

Berry  v.  State,  63  Ala.  126  5* 

Betts  v.  State,  66  Ga.  508  76,  80 
Billings,  State  v.  77  Iowa  417                                                              76,  78,  82 

Billingslea  v.  State,  68  Ala.  486  65 

Bindley,  Stark  v.,  52  N.  E.  804  103 

Bird  v.  State,  14  Ga.  43  48 

Bird  v.  State,  50  Ga.  585  137 

Bird  v.  State,  103  Tenn.  343  150 

Blackmore  v.  State,  8  S.  W.  940  90 

Blaney  v.  State,  74  Md.  153  104 

Blau  v.  State,  34  So.  153  31,  127 

Bleekley,  State  v.,  18  Mo.  428  77 

Blevins  v.  State,  68  Ala.  92  51,  129 

Blodgett  v.  State,  3  Ind.  403  152 
Blodgett,  United  States  v.,  30  Fed.  Cas.  1157                               69,  85,  103 

Blodgett,  United  States  v.,  35  Ga.  336  68,  85 

Bloomer  v.  State,  3  Sneed.  (Tenn.)  66  145 

Blume  v.  State,  56  N.  E.  771  149 

Bollyn  v.  Nebraska,  176  U.  S.  83  33 

Booth  v.  Com.,  16  Gratt.  (Va.)  519  73 

Booth,  Turpen  v.,  56  Calif.  65  167 

Bordeaux,  State  v.,  93  N.  C.  560  154 

Borgstrom,  People  v.  178  N.  Y.  254  64,  65 

Borough,  Millville,  10  Pa.  C.  C.  Rep.  321  121 

Borroum,  State  v.,  25  Miss.  203  87 

Boswell,  State  v.,  104  Ind.  541  115 

Boulo  v.  State,  51  Ala.  18  65 

Bowen  v.  State,  24  So.  551  70 

Bowman,  State  v.,  103  Ind.  69  149,  151 

Bowman,  State  v.,  73  Iowa  no  83 

Bowman,  State  v.,  90  Me.  363  140 

Boyd,  State  v.,  2  Hill  (S.  C.)  288  146 

Boyd  v.  State,  98  Ala.  33  51 

Boyd  v.  State,  46  Tenn.  i  48 


XXVI  TABLE  OF   CASES. 

PAGE 

Boyington  v.  State,  2  Port.  (Ala.)  100  85 

Box  v.  State,  34  Miss.  614  46 

Bradford,  State  v.  57  N.  H.  188  48,  84 

Bradley,  State  v.  32  La.  Ann.  402  66 
Bradney,  Com.  v.,  126  Pa.  199                                                   78,  84,  128,  129 

Bradner,  People  v.,  44  Hun.  (N.  Y.)  233  129 

Brady,  United  States  v.,  3  Cr.  Law.  Mag.  69  33 
Brainerd,  State  v.,  56  Vt.  532                                                         45,  77,  M7 

Branch,  State  v.,  68  N.  C.  186  n? 

Brandon,  State  v.,  28  Ark.  410  86 

Brandt,  State  v.,  41  Iowa  593  58,  90 

Brannigan  v.  People,  3  Utah  488  45,  56 

Bredin,  Com.  v.,  165  Pa.  224  114 

Brewer,  State  v.,  8  Mo.  373  120 

Brewster,  State  v.,  42  L.  R.  A.  444  139 

Bridge  Appropriations,  In  re,  9  Kulp  (Pa.)  427  127 

Bridge  in  Nescopeck,  In  re,  3  Luz.  Leg.  Reg.  (Pa.)  196  66,  77 

Bridge  in  Nescopeck,  In  re,  3  Luz.  Leg.  Reg.  (Pa.)  410  77 

Bridge,  Pequea  Creek,  68  Pa.  427  122 

Briggs,  People  v.,  60  How.  Pr.  Rep.  (N.  Y.)  17  120,  144 
Brooks,  State  v.  9  Ala.  9                                                                    52,  62,  72 

Brooks,  State  v.  48  La.  Ann.  1519  84 

Broughton,  State  v.,  7  Ired.  (N.  C.)  96  119 

Brown,  Com.  v.,  147  Mass.  585  81 
Brown,  Com.  v.  23  Pa.  Superior  Ct.  470                                     no,  114,  134 

Brown  v.  Com.,  73  Pa.  321  66 
Brown  v.  Com.,  76  Pa.  319                                                                66,  82,  in 

Brown  v.  Com.,  86  Va.  466  134 

Brown,  State  v.,  10  Ark.  78  62 

Brown,  State  v.,  10  Ark.  104  135 
Brown,  State  v.,  81  N.  C.  568                                                          150,  152,  156 

Brown,  State  v.,  28  Ore.  147  74 

Brown,  State  v.,  31  Vt.  602  149 

Brown  v.  State,  10  Ark.  607  92 

Brown  v.  State,  7  Humph.  (Tenn.)  155  156 

Brown  v.  State,  32  Tex.  Cr.  Rep.  119  71 

Brown,  United  States  v.,  24  Fed.  Cas.  1273  145,  146 

Broyles  v.  State,  55  S.  W.  966  90 

Bruce,  State  v.,  77  Mo.,  193  134 

Bruner  v.  Superior  Court,  92  Calif.  239  59 

Bryant  v.  State,  79  Ala.  282  142 

Bryant,  State  v.,  10  Yerg.   (Tenn.)   527  62 

Buchanan  v.  State,  52  S.  W.  769  143 

Bucks  County  Grand  Jury,  24  Pa.  C.  C.  Rep.  162  no 

Buntin,  State  v.,  123  Ind.  124  149 

Burdick  v.  Hunt,  43  Ind.  381  119 


TABLE  OF  CASES.  XXV11 

PACK 

Burgess  v.  Com.,  2  Va.  Cas.  483  151 

Burnham  v.  Hatfield,  5  Blackf.   (Ind.)  21  119 

Burns,  Res,  v.,  i  Yeates  (Pa.)  370  34 

Burr,  United  States  v.  Aaron,  25  Fed.  Cas.  55  74,  76,  82,  125,  143 

Burrell  v.  State,  129  Ind.  290  84 

Burton,  Com.  v.  4  Leigh  (Va.)  645  84 

Bushel's  Case,  Vaughan,  153  164 

Butler,  People  v.,  8  Calif.  435  147 

Butler,  People  v.,  i  Idaho  231  134 

Butler,  State  v.,  16  Tenn.  83  104 

Butler,  United  States  v.,  25  Fed.  Cas.  213  69,  156 

Byrd  v.  State,  I  How.  (Miss.)  247  91,  127 

Caha  v.  United  States,  152  U.  S.  211  154 

Cain,  State  v.,  i  Hawks.  (N.  C.)  352  132 

Caldwell  v.  State,  5  Tex.  18  157 

Calhoon,  State  v.,  i  Dev.  and  Bat.  (N.  C.)  374  148,  149 

California,  Hurtado  v.,  no  U.  S.  516  33,  39 

Cameron,  State  v.,  2  Chand.  (Wis.)  172  66 

Campbell  v.  Com.,  84  Pa.  187  66 

Cantrell,  State  v.,  21  Ark.  127  48 

Carl  v.  State,  28  So.  505  143 

Carlson,  State  v.,  62  Pac.  1016  81 

Carney,  State  v.,  20  Iowa  82  57 

Carpenter,  Penfield  v.,  13  Johns  (N.  Y.)  350  145 

Carpenter  v.  People,  64  N.  Y.  483  65 

Carpenter  v.  State,  62  Ark.  286  87 

Carpenter  v.  State,  4  How.  (Miss.)  163  45 

Carter  v .  State,  75  Ga.  747  73 

Carter  v.  State,  46  S.  W.  236  64,  69 

Carter  v.  Texas,  177  U.  S.  442  67,  68,  69,  86 

Carver,  State  v.,  49  Me.  588  87 

Case  of  Lloyd  and  Carpenter,  3  Clark  (Pa.)  188  i,  44,  106,  in,  158 

Cawood,  Com.  v.,  2  Va.  Cas.  527  154,  156 

Chairs,  State  v.,  68  Tenn.  196  78 

Challenge  to  Grand  Jury,  3  N.  J.  Law  Jour.  153  48,  49,  58,  70,  71 

Chambers,  State  v.,  87  Iowa  I  70 

Champeau,  State  v.,  52  Vt.  313  67 

Chandler,  State  v.,  2  Hawks.  (N.  C.)  439  149 

Chappel  v.  State,  8  Yerg.  (Tenn.)  166  156 

Charge  to  Grand  Jury,  5  Dist.  Rep.  (Pa.)   130  no 

Charge  to  Grand  Jury,  Chief  Justice  Chase's,  30  Fed.  Cas.  980  loa 
Charge  to  Grand  Jury,  Chief  Justice  Shaw's,  8  Am.  Jurist  216    43.  105,  160 

Charge  to  Grand  Jury,  Chief  Justice  Taney's,  30  Fed.  Cas.  998  102 

Charge  to  Grand  Jury,  Judge  Stowe's,  3  Pitts.  Rep.  (Pa.)  179  158 
Charge  to  Grand  Jury,  Mr.  Justice  Field's,  30  Fed.  Cas.  992 

loi,  103,  105,  108,  127,  128,  130,  162 


XXV111  TABLE  OF  CASES. 

PAOB 
Charges  to  Grand  Juries,  Judge  Addison's,  Add.  App.  (Pa.) 

i,  101,  105,  123,  131,  141,  160 

Charles,  United  States  v.,  25  Fed.  Cas.  409  118 

Charters,  Com.  v.,  20  Pa.  Superior  Ct.  599  153 

Chartz  v.  Territory,  32  Pac.  166  50 

Chase  v.  State,  46  Miss.  683  68 

Chase  v.  State,  20  N.  J.  Law  218  48,  49 

Chauncey,  Com.  v.,  2  Ashm.  (Pa.)  101  49,  66,  87 

Cheek  v.  State,  38  Ala.  227  152 

Cherry,  Com.  v.,  2  Va.  Cas.  20  64 

Cherry  v.  State,  6  Fla.  679  150 

Christmas  v.  State,  53  Ga.  81  152 

Church,  Com.  v.,  i  Pa.  105  86 

Citizens  Association,  In  re,  8  Phila.   (Pa.)  478  124,  135,  147 

Clair  v.  State,  40  Neb.  534;  28  L.  R.  A.  367  124,  126 

Clapper,  State  v.,  59  Iowa,  279  150 

Clare  v.  State,  68  Ind.  17  156 

Clare  v.  State,  30  Md.  163  66,  68,  87 

Clarissa,  State  v.,  n  Ala.  57  76,  85,  87 

Clark  v.  United  States,  19  App.  D.  C.  295  90 

Clark,  United  State  v.,  46  Fed.  Rep.  633  74 

Clarke,  Com.  v.,  2  Browne  (Pa.)  325  62,  76,  82,  85 

Clawson  v.  United  States,  114  U.  S.  477  82 

Clayton,  State  v.,  n  Rich.  Law  (S.  C.)  581  45 

Clayton,  Territory,  v.,  8  Mont,  i  64 

Clayton,  Territory  v.,  19  Pac.  293  69 

Clem  v.  State,  33  Ind.  418  160 

Clements,  People  v.,  5  N.  Y.  Cr.  Rep.  288  153 

Clemmer,  Com.  v.,  190  Pa.  202  no 

Clifton,  State  v.,  73  Mo.  430  68,  87 

Clough,  State  v.,  49  Me.  573  49,  50,  139 

Clune,  Com.  v.,  162  Mass.  206  155 

Clune,  United  States  v.,  62  Fed.  Rep.  798  63,  74,  76 

Clyncard's  Case,  Cro.  Eliz.  654  147 

Cobb  v.  State,  40  Neb.  545  124 

Cobban,  United  States  v.,  127  Fed.  Rep.  713  127,  128,  142 

Cock  v.  Rambo,  Pa.  Colonial  Cases  79  32 

Cody  v.  State,  3  How.  (Miss.)  27  135 

Cole,  State  v.,  17  Wis.  674  64 

Cole,  State  v.,  19  Wis.  129  80 

Coleman,  State  v.  8  S.  C.  237  134 

College's  Trial,  8  How.  St.  Tr.  549  29 

Collins  v.  People,  39  111.  233  150 

Collins,  State  v.,  3  Dev.  (N.  C.)  117  149 

Collins,  State  v.,  65  Tenn.  151  91,  148 

Collins  v.  State,  13  Fla.  651  130 


TABLE  OF  CASES.  XXIX 

PAOB 

Collins  v.  State,  31  Fla.  574  75 

Collis,  State  v.,  73  Iowa  542  153 

Colmere,  People  v.  23  Calif.  632  85 

Combs  v.  Com.,  90  Va.  88  48 

Comer,  State  v.,  157  Ind.  611  133,  144 

Com.,  Allen  v.,  2  Bibb.  (Ky.)  210  136 

Com.  v.  Allen,  14  Pa.  C.  C.  Rep.  546  153 

Com.  v.  Bannon,  97  Mass.  214  160 

Com.  v.  Beldham,  15  Pa.  Superior  Ct.  33  no 

Com.,  Booth  v.,  16  Gratt  (Va.)  519  73 
Com.  v.  Bradney,   126  Pa.   199                                                  78,  84,   128,   129 

Com.  v.  Bredin,  165  Pa.  224  114 

Com.,  Brown  v.,  73  Pa.  321  66 

Com.,  Brown  v.,  76  Pa.  319  66,  82,  m 

Com.,  Brown  z-.,  86  Va.  466  134 

Com.  v.  Brown,  147  Mass.  585  81 

Com.  v.  Brown,  23  Pa.  Superior  Ct.  470  no,  114,  134 

Com.,  Burgess  v.,  2  Va.  Cas.  483  151 

Com.  v.  Burton,  4  Leigh   (Va.)  645  84 

Cont.,  Campbell  v.,  84  Pa.  187  66 

Com.  v.  Cawood,  2  Va.  Cas.  527  154,  156 

Com.  v.  Charters,  20  Pa.  Superior  Ct.  599  153 

Com.  v.  Chauncey,  2  Ashm.   (Pa.)   101  49,  66,  87 

Com.  v.  Cherry,  2  Va.  Cas.  20  64 

Com.  v.  Church,  i  Pa.  105  86 
Com.  v.  Clarke,  2  Browne   (Pa.)   325                                         62,  76,  82,  85 

Com.  v.  Clemmer,  190  Pa.  202  no 

Com.  v.  Clune,  162  Mass.  206  155 

Com.,  Combs  v.,  go  Va.  88  48 

Com.  v.  Cosier,  8  Luz.  Leg.  Reg.  (Pa.)  97  62,  73 

Com.  v.  Craig,   19  Pa.   Superior  Ct.  81  73,  78,  82 

Com.  v.  Crans,  2  Clark  (Pa.)  441  162,  165 

Com.,  Crimm  v .,  1 19  Mass.  326  46 

Com.  v.  Cunningham,  6  Gratt.   (Va.)  695  62 

Com.,  Davidson  v.,  5  Cen.  Rep.  484  114 

Com.,  Davis  v.,  89  Va.  132  48 

Com.  v.  Delemater,  2  Dist.  Rep.   (Pa.)  562  53,  66,  no 

Coin.  -v.  Dietrich,  7  Pa.  Superior  Ct.  515  45 

Com.  v.  Diffenbaugh,  3  Pa.  C.  C.  Rep.  299  148 

Com.  v.  Dittus,  17  Lane.  Law  Rev.  (Pa.)  127  105 

Com.  v.  Ditzler,  i  Lane.  Bar  (Pa.)  147,  148 

Com.  v .  Dorwart,  7  Lane.  Bar  (Pa.)   121  139 

Com.  v.  Dove,  2  Va.  Cas.  29  135 

Com.,  Downs  v.,  92  Ky.  605  46 

Com.  v.  English,  6  Bush  (Ky.)  431  150 

Com.  v.  English,  11  Phila.  (Pa.)  439  in,  113 


XXX  TABLE  OF    CASES. 

PAGE 

Com.  f.  Fehr,  2  Northampton  Co.  Rep.  275  114 

Com.,  Foust  v.,  33  Pa.  338  7O 

Com.,  Franklin  v.,  48  S.  W.  986  127 

Com.  v.  Freeman,  166  Pa.  332  68,  87 

Com.  v.  Frescoln,  n  Lane.  Law  Rev.  (Pa.)  161  138 

Com.  v.  Frey,  n  Pa.  C.  C.  Rep.  523  128 

Com.  v.  Gee,  60  Mass.  174  103 

Com  v.  Gleason,  no  Mass.  66  149 

Com.  Gordon  v.,  92  Pa.  216  119 

Com.  v.  Gore,  3  Dana.   (Ky.)   474  136 

Com.  v.  Graddy,  4  Metcalf  (Ky.)  223  59 

Com.  v.  Gressly,  12  Lane.  Bar.  (Pa.)  52  148 
Com.v.  Green,  126  Pa.  531  no,  in,  119 

Com.  v.  Griscom,  36  Pitts.  L.  J.  (Pa.)  332  114 

Com.  v.  Hamilton,  15  Gray  (Mass.)  480  149 

Com.,  Harrison  v.,  123  Pa.  508  114.  *54 

Com.,  Haught  v.,  2  Va.  Cas.  3  135 

Com.  Hausenfluck  v.,  85  Va.  702  147 

Com.  v.  Hayden,  163  Mass.  453  78,  132 

Com.  v.  Hill,  ii  Cush.   (Mass.)   137  118,  119 

Com.,  Hopkins  v.,  50  Pa.  9.  156 

Com.  v.  Hughes,  11  Pa.  C.  C.  Rep.  470  114 

Com.  v.  Kurd,  177  Pa.  481  no 

Com.  v.  Jadwin,  2  Law  T.  (N.  S.)  13  in 

Com.,  Jewell  v.,  22  Pa.  94  51 

Com.,  Jillard  v.,  26  Pa.  169  138 

Com.  v.  Keenan,  67  Pa.  203  148 

Comx  v.  Kelcher,  3  Met.  (Ky.)  485  152 

Com.,  Kendall  v.,  19  S.  W.  173  66 

Con.,  v.  Knapp,  9  Pick.   (Mass.)  498  136 

Com.  v.  Kulp,  17  Pa.  C.  C.  Rep.  561  no,  119 

Com.  v.  Leigh,  38  Leg.  Int.  (Pa.)  184  114 

Com.  v.  Leisenring,  2  Pears.   (Pa.)  466  45,  46 

Com.  v.  Lenox,  3  Brews.   (Pa.)  249  134 

Com.  v.  Lippard,  6  S.  &  R,   (Pa.)  395  67 

Com.v.  McComb,  157  Pa.  611  no,  119 
Com.,  McCullough  v.,  67  Pa.  30  101,  106,  in 
Com.,  Mclntire  v.,  4  S.  W.  i  132,  143,  147 

Com.  v.  Mead,  12  Gray  (Mass.)   167  119 

Com.,  Mesmer  v.,  26  Gratt.  (Va.)  976  48 

Com.  v.  Mjnor,  89  Ky.  555  142,  145 

Com.  v .  Moister,  3  Pa.  C.  C.  539  in 

Com.,  Moore  v.,  9  Leigh  (Va.)  639  62 

Com.  v.  Morton,  34  Leg.  Int.  (Pa.)  438  54 

Com.  v.  New  Bethlehem  Borough,  15  Pa.  Superior  Ct.  158  114 

Com.  v.  Noonan,  38  Leg.  Int.   (Pa.)   184  90 


TABLE  OF  CASES.                                           XXXI 

PAOB 

Com.,  Oliver  v.,  95  Ky.  372  150 

Com.,  Overshiner  v.,  2  B.  Mon.   (Ky.)  344                                                  149 

Com.  v.  Parker,  2  Pick.   (Mass.)   550  50 

Com.,  Patterson  v.,  86  Ky.  313  156 

Com.,  Pearce  v.,  8  S.  W.  893  156 

Com.,  Pence  v.,  95  Ky.  618  157 

Com.  v.  Pfaff,  5  Pa.  Dist.  Rep.  59  III 

Com.,  Porterfield  v.,  91  Va.  801  124 

Com.  v.  Price,  3  Pa.  C  C.  Rep.  175  138,  146 

Com.,  Price  v.,  21  Gratt.  (Va.)  846  149 

Com.  v.  Priestley,  10  Dist.  Rep.   (Pa.)  217                                                  153 

Com.  v.  Pritchett,  74  Ky.  277  78 

Com.  v.  Reynolds,  2  Kulp  (Pa.)  345  no 

Com.  v.  Rich,  14  Gray  (Mass.)  335  160 

Com.,  Rich  irdson  v.,  76  Va.  1007  140 

Com.  v.  Ridgway,  2  Ash.    ( Pa. )   247  164 

Com.  v.  Ripperdon,  Litt.  Sel.  Cas.  (Ky.)  194  148 

Com.,  Robinson  v.,  88  Va.  900  48,  87 

Com.,  Rolland  v.,  82  Pa.  306  62,  65,  66,  70,  73,  77,  85 

Com.  v.  Rovnianck,  12  Pa.  Superior  Ct.  86                                                   138 

Com.  v.  Rowand,  82  Pa.  405  no,  112,  152 

Com.  v.  Rudd,  3  Ky.  Law.  Rep.  328  78 

Com.  v.  Ryan,  5  Mass.  90  81 

Com.  v.  Salter,  2  Pears.   (Pa.)  461  45,  46,  54,  66,  128,  129,  138,  156 

Com.  v.  Sanborn,  116  Mass.  61  124 

Com.  v.  Sargent,  Thach.  Cr.  Cas.  (Mass.)   116  148 

Com.  v .  Schall,  6  York  Leg.  Rec.  (Pa.)  24  in,  138,  151 

Com.  v.  Sheppard,  20  Pa.  Superior  Ct.  417                                          in,  114 

Com.  v.  Shew,  8  Dist.  Rep.  (Pa.)  484  68,  87 

Com.,  Shouse  v.,  5  Pa.  83  148 

Com.  v.  Shubel,  4  Pa.  C.  C.  Rep.  12  in 

Com.  v.  Shupp,  6  Kulp  (Pa.)  430  ill 

Com,,  Simmons  v.,  89  Va.  156  156 

Com.  v.  Simons,  6  Phila.  (Pa.)   167  in,  114 

Com.  v.  Skeggs,  66  Ky.  19  120 

Com.,  Slagel  v.,  5  Ky.  Law  Rep.  545  72 

Com.  v.  Smith,  10  Bush.   (Ky.)   476  61,  87 

Com.  v.    Smith,  9  Mass.   107  73,  81,  85 

Com.  v.  Smith,  4  Pa.  Superior  Ct.   i  54 

Com.  v.  Smith,  27   S.   W.  810  86 

Com.  v.  Smyth,  11  Cush.  (Mass.)  473  149 

Com.,  Sparks  v.,  9  Pa.  354  150,  154 

Com.  v.  Spattenhover,  8  Luz.  Leg.  Reg.  101  143 

Com.  v.  Stegala,  8  Ky.  Law  Rep.  142  157 

Com.  v.  Stone,  105  Mass.  469  134 

Com  v .  Strother,  i  Va.  Cas.  186  78 


XXX11  TABLE  OF  CASES. 

PAGB 

Com.  v.  Taylor,  12  Pa.  C.  C  326  114 

Com.,  Thomas  v.,  2  Robinson   (Va.)  795  118 

Com.,  Thompson  v.,  20  Gratt.  (Va.)  724  15° 

Com.,  Thompson  v.,  88  Va.  45  135 

Com.  v.   Towles,  5  Leigh  (Va.)  743  130 

Com.,  Turns  v.,  47  Mass.  224  89 

Com.  v.  Twitchell,  i   Brews.   (Pa.)   551  120,   128 

Com.,  Twitchell  v.,  7  Wall.  (U.  S.)  321  33 

Com.  v.  Usner,  7  Lane.  (Pa.)  57  151 

Com.  t>.  Valsalka,  181  Pa.  17  66,  67 

Com.,  Wadley  v.,  35  S.  E.  452  143 

Com.  v.  Walters,  6  Dana  (Ky.)  290  148,  150 

Com.,  Wells  v.,  15  Ky.  Law  Rep.  179  147 

Com.  v.  Wetherold,  2  Clark  'Pa.)  476  in 

Com.  v.  Whitaker,  25  Pa.  C.  C.  Rep.  42  110 

Com.,  White  v.,  29  Gratt.  (Va.)  846  149 

Com.,  Whitehead  v.t  19  Gratt.  (Va.)  640  66 

Com.  v.  Wilson,  2  Chester  Co.  Rep.   (Pa.)   164  no 

Com.  v.  Wilson,  9  Pa.  C.  C.  Rep.  24  13? 

Com.  v.  Wood,  2  Cush.   (Mass.)    149  46 

Com.  v.  Woods,  10  Gray  (Mass.)  477  132,  155 

Com.  v.  Woodward,  157  Mass.  516  76 

Com.,  Wortham  v.,  5  Randolph  (Va.)  669  135 

Com.  v.  Wright,  79  Ky.  22  67 

Com.,  Yost  v.,  5  Ky.  Law  Rep.  935  152 

Com.,  Ziegler  v.,  22  W.  N.  C.  (Pa.)  in  120 

Com.  v.  Zillafrow,  207  Pa.  274  53,  58 

Compton  v.  State,  23  So.  750  65 

Compton,  State  v,,  13  W.  Va.  852  15? 

Congdon,  State  v.  14  R.  I.  267  60,  63 

Conner  v.  State,  25  Ga.  515  48,  59 

Conner  v.  State,  4  Yerg.   (Tenn.)   137  151 

Conway,  State  v.  35  La.  Ann.  350  58 

Cook  v.  Territory,  4  Pac.  887  65,  68 

Cooke,  R.  v.,  8  Car.  &  P.     582  148,  152 

Cooley,  State  v.,  75  N.  W.  729  46,  56 

Coolidge,  United  States  v.,  25  Fed.  Cas.  622  138,  146 

Cooper  v.  State,  79  Ind.  206  149,  151 
Copp,  State  v.,  34  Kan.  522                                                            45,  51,  147 

Corbett,  Territory  v.,  3  Mont  50  103 

Cosier,  Com.  v.,  8  Luz.  Leg.  Reg.  (Pa.)  97  62,  73 
Cotton,  Huidekoper  v.,  3  Watts  (Pa.)  56                                    116,  118,  119 

Cotton  v.  State,  31  Miss.  504  84 

Cotton  v.  State,  43  Tex.  169  143 

Couch  v.  State,  63  Ala.  163  50,  57 

Counselman  v.  Hitchcock,  142  U.  S.  547  145 


TABLE  OF  CASES.  XXX111 

MMH 

County  Commissioners,  In  re,  7  Ohio  N.  P.  450  123 

Courtney  v.  State,  5  Ind.  App.  356  140 
Cowan,  State  v.,  i  Head  (Term.)  260                                         148,  164,  165 

Cox  v.  People,  80  N.  Y.  500  86 

Cox,  State  v.,  6  Ired  (N.  C)  440  148 
Craig,  Com.  v.,  19  Pa.  Superior  Ct.  81                                             73,  78,  82 

Crans,  Com.  v.,  2  Clark  (Pa.)  441  162,  165 

Creighton,  State  v.,  i  N.  &  McC  (S.  C)  256  148 

Crilly,  State  v.,  77  Pac.  701  156 

Crimm  v.  Com.,  119  Mass.  326  46 

Crittenden,  Ex  Parte,  6  Fed.  Cas.  822  127 

Crocker  v.  State,  Meigs  (Tenn.)  127  116,  118 

Cross  v.  State,  63  Ala.  40  51 

Cross  v.  State,  78  Ala.  430  140 

Crowley  v.  United  States,  194  U.  S.  461  73,  74 

Cubine  v.  State,  73  S.  W.  396  63 

Cuitano,  People  t>.,  15  Calif.  327  48 

Cunningham,  Com.  v.,  6  Gratt.  (Va.)  695  62 

Danforth  v.  State,  75  Ga.  614  156 

Davidson  v.  Com.,  5  Cen.  Rep.  484  114 

Davidson  v.  People,  90  111.  221  73 
Davidson,  State  v.,  2  Cold.   (Tenn.)   184                                    151,  155,  156 

Davidson,  State  v.,  12  Vt.  300  151 

Davis  v.  Com.,  89  Va.  132  48 

Davis  v.  State,  46  Ala.  80  89 
Davis,  State  v.,  41  Iowa  311                                                            65,  119,  120 

Davis,  State  v.,  14  La.  Ann.  678  88 

Davis,  State  v.,  22  Minn.  423  70 

Davis,  State  v.,  126  N.  C.  1007  54 

Dtavis,  State  v.,  12  R.  I.  492  63 

Dawson  v.  People,  25  N.  Y.  399  157 

Dayton,  State  v.  23  N.  J.  Law  49  143 

De  Hart,  State  v.,  109  La.  570  150 

Deitz  v.  State,  123  Ind.  85  149 

Delaware,  Neal  v.,  103  U.  S.  370  67 

Delaware  River  Road,  5  Dist.  Rep.   (Pa.)  694  65,  77 
Delemater,  Com.  v.,  2  Dist.  Rep.  (Pa.)  562                                53,  66,  no 

Denby's  Case,  i  Leach  C.  C.  514  142,  143 

Denning  v.  State,  22  Ark.  131  84 

Denton,  State  v.,  14  Ark.  343  135 

Denton  v.  State,  155  Ind.  307  149 

Derrick,  State  v.,  44  S.  C.  344  49 

DteSerrant,  State  v.,  33  La.  Ann.  979  115 

Deshazo  v.  State,  23  Tenn.  275  104 

Dickinson,  Rex  v.,  Russ.  &  Ry.  Crown  Cases  401  139 

Dietrich,  Com.  v.,  7  Pa.  Superior  Ct.  515  45 
3 


XXXIV  TABLE  OF   CASES. 

PAOB 

Diffenbaugh,  Com.  v.,  3  Pa.  C.  C.  Rep.  299  148 

Dillard,  State  v.,  35  La.  Ann.  1049  88 

District  Attorney  U.  S.,  In  re,  7  Fed.  Cas.  745  128,  129 

District  Court,  People  v.,  29  Colo.  83  76 

District  Court,  State  v.,  55  Pac.  916  140 

Dittus,  Com.  v.,  17  Lane.  Law  Rev.  (Pa.)  127  105 

Dtitzler,  Com.  v.,  i  Lane.  Bar  (Pa.)  I47»  148 

Dixon  v.  State,  29  Ark.  165  87 

Dixon  v.  State,  3  Iowa  416  66,  68,  69 

Dixon  v.  State,  20  So.  839  64,  67 

Doan's  Case,  5  Pa.  Dist.  Rep.  211  162 

Dodd,  King  v.,  i  Leach  C.  C.  155  144 

Doebler  v.  State,  31  Tenn.  473  104 

Doherty,  State  v.,  60  Me.  504  89 

Dolan  v.  People,  64  N.  Y.  485  58 

Donald  v.  State,  31  Fla.  255  147 

Donaldson,  State  v.,  43  Kan.  431  67 

Dorman  v.  State,  56  Ind.  454  50 

Dorwart,  Com.  v.,  7  Lane.  Bar.  (Pa.)  121  139 

Doss  v.  State,  28  Tex.  App.  506  139 

Dove,  Com.  v.,  2  Va.  Cas.  29  135 

Dowling  v.  State,  5  Smedes  &  M.  (Miss.)  664                                   50,  52,  60 

Downs  v.  Com.,  92  Ky.  605  46 

Downs  v.  State,  78  Md.  128  68 

Doyle  v.  State,  17  Ohio  222  56 

Drake  and  Cochren's  Case,  6  Gratt.  (Va.)  665                                             157 

DVake  v.  State,  25  Tex.  App.  293  84,  160 

Drogmond,  State  v.,  55  Mo.  87  83 

Duke  v.  State,  20  Ohio  St.  225  137 

Dukes  v.  State,  14  Fla.  499  50 

Dulany,  United  States  v.,  25  Fed.  Cas.  23  135 

Duncan,  State,  v.,  28  N.  C.  98  66 

Duncan,  State  v.,  7  Yerg.  (Tenn.)  271  61,  87 

Durham  Fertilizer  Co.,  State  v.,  in  N.  C.  658                                              63 

Durr  v.  State,  53  MHss.  425  129 

Durrah  v.  State,  44  Miss.  789  58,  86 

Dusenberry,  State  v.,  112  Mo.  277  89 

Dutell  v.  State,  4  G.  Greene  (Iowa)  125  58 

Dye  v.  State,  130  Ind.  87  115 

Dyer  v.  State,  79  Tenn.  509  87 

Eagan,  United  States  v.,  30  Fed.  Rep.  608  56,  77,.  86 

Earnest,  People  v.  45  Calif.  29  89 

Easter,  State  v.,  30  Ohio  St.  542  80 

Easton,  State  v.,  113  Iowa  516  138 

Edens,  State  v.,  85  N.  C.  522  62 

Edgerton,  State  v.,  69  N.  W.  280  73,  124,  126 


TABLE  OF  CASES.  XXXV 

PtOB 

Edgcrton,  United  States  r.,  80  Fed.  Rep.  374  128,  139,  145 

Edmonds  v.  State,  34  Ark.  720  66 

Edson  v.  State,  32  So.  308  65 

Elkins,  State  v.,  Meigs  (Tenn.)  109  151 

Elliott,  State  v.,  98  Mo.  150.  151 

Elliott,  United  States  v.,  25  Fed.  Cas.  1003  148 

Ellis,  In  re,  8  Fed.  Cas.  548  84,  166 

Ellis  v.  State,  92  Tenn.  85  87 

Elson,  State  v.,  45  Ohio  St  648  74 

Empson  v.  People,  78  111.  248  161 

Engleman  v.  State,  2  Cart.  (Ind.)  91  157 

English,  Com.  v.,  6  Bush.  (Ky.)  431  150 

English,  Com.  v.,  n  Phila.  (Pa.)  439  in,  113 

English  v.  State,  31  Fla.  340  147 

English,  State  v.,  i  Murphy  (N.  C.)  435  136 

Estes,  State  v.,  71  Tenn.  168  104 

Ex  Parte  Bain,  121  U.  S.  i  154,  155 

Ex  Parte  Crittenden,  6  Fed  Cas.  822  127 

Ex  Parte  Farley,  40  Fed.  Rep.  66  89 

Ex  Parte  Hammond,  91  Calif.  545  88 

Ex  Parte  Job,  30  Pac.  699  152 

Ex  parte  McCoy,  64  Ala.  201  67 

Ex  Parte  Moan,  65  Calif.  216  115 

Ex  Parte  Ogle,  61  S.  W.  122  46 

Ex  Parte  Reynolds,  34  S.  W.  120  46 

Ex  Parte  Schmidt,  71  Calif.  212  120 

Ex  Parte  Sontag,  64  Calif.  525  119,  121 

Ex  Parte  Wildman,  29  Fed.  Cas.  1232  33 

Ex  Parte  Wilson,  114  U.  S.  417  33,  115 

Farley,  Ex  Parte,  40  Fed.  Rep.  66  89 
Farrington,  United  States  v.,  5  Fed.  Rep.  343  119,  120,  155 
Fasset,  State  v.,  16  Conn.  457  103,  118,  137,  143 

Fee,  State  v.,  19  Wis.  562  46 

Fehr,  Com.  v.,  2  Northampton  Co.  Rep.  (Pa.)  275  114 

Fellows,  State  v.,  2  Hayw.  (N.  C.)  340  143,  145 

Felter,  State  v.,  25  Iowa  67  73 

Penalty  v.  State,  12  Ark.  630  85,  87 

Fertig,  State  v.,  98  Iowa  139  139 

Fieldhouse,  Rex  v.,  i  Cowper  325  147 

Fields  v.  State,  25  So.  726  150 
Findley  v.  People,  I  Manning  (Mich.)  234  51,  52,  161 
Finley  v.  State,  61  Ala.  201  50,  56,  83, 

Finnegan  v.  State,  57  Ga.  427  89 

Fisher  v.  State,  93  Ga.  309  77 

Fisher  v.  United  States,  31   Pac.   195  86 

Fitch,  King  v.,  Cro.  Chas.  414  26 


XXXVI  TABLE  OF   CASES. 

PAGB 

Fitzgerald  v.  State,  4  Wis.  395  147 

Fitzhugh,  State  v.,  2  Ore.  227  65 

Fitzpatrick  v.  People,  98  111.  269  156 

Fitzpatrick,  People  v.,  30  Hun.  (N.  Y.)  493  66 

Fleming,  State  v.,  66  Me.  142  48 

Flint,  State  v.,  52  La.  Ann.  62  66 

Flores,  State  v.,  33  Tex.  444  148 

Floyd  v.  Barker,  12  Co.  23  167 

Folke,  State  v.,  2  La.  Ann.  744  93,  149 

Ford,  King  v.,  Yelv.  99  148,  150 

Foster  v.  State,  31  Miss.  421  93 

Fotheringham  v.  Adams  Express  Co.,  34  Fed.  Rep.  646  119 

Foust  v.  Com.,  33  Pa.  338  70 

Fout  v.  State,  3  Hayw.  (Tenn.)  98  134 

Fowler  v.  State,  100  Ala.  96  62 
Fowler,  State  v.,  52  Iowa  103                                                             51,  85,  142 

Fox,  State  v.,  9  N.  J.  Law  244  91 

Franklin  v.  Com.,  48  S.  W.  986  127 

Franklin  v.  State,  28  Ala.  9  157 

Freel  v.  State,  21  Ark.  212  66,  161 

Freeman,  Com.  v.,  166  Pa.  332  68,  87 

Freeman,  State  v.,  13  N.  H.  488  149 

Frescoln,  Com.  v.,  u  Lane.  Law  Rev.  (Pa.)  161  138 

Frey,  Com.  v.,  n  Pa.  C  C.  Rep.  523  128 

Friar  v.  State,  3  How.  (Miss.)  422  91 

Frisbie  v.  United  States,  157  U.  S.  160  148,  151 

Frizell,  State  v.,  in  N.  C.  722  146 
Froiseth,  State  v.,  16  Minn.  313                                        51,  52,  124,  144,  145 

Fuers,  United  States  v.,  25  Fed.  Cas.  1223  no 
Furco,  State  v.,  51  La.  Ann.  1082                                                    70,  92,  124 

Gabe  v.  State,  i  Eng.  (Ark.)  540  136 

Gainus,  State  v.,  86  N.  C.  632  156 
Gale,  United  States  -v.,  109  U.  S.  65                                          63,  65,  69,  86 

Gallagher,  People  v.,  55  Calif.  462  58 

Gannon,  In  re,  69  Calif.  541  88,  160 

Gardiner,  In  re,  64  N.  Y.  Sup.  760  132 

Gardiner  v.  People,  3  Scam.   (111.)  83  149 

Gardner  v.  People,  20  111.  430  156 

Gardner  -v.  State,  4  Ind.  632  152 

Gardner,  State  v.,  88  Minn.  130  145 

Garhart,  State  v.,  35  Iowa  315  50,  51 

Garret  v.  State,  17  Tenn.  389  104 

Garrett,  Kirk  v.,  84  Md.  383  up 

Gatewood,  People  v.,  20  Calif.  146  147 

Gay  -v.  State,  49  S.  W.  612  162 

Gee,  Com.  v.,  60  Mass.  174                                                       ;  103 


TABLE  OF  CASES.  XXXV11 

MM 

Gciger,  People  v.,  49  Calif.  643  69 

Geiger  v.  State,  25  Ohio  Cir.  Ct.  Rep.  742  149 

Germolgez  v.  State,  99  Ala.  216  85 

Gerrish  v.  State,  53  Ala.  476  152 

Gibbs,  State  v.,  39  Iowa  318  64,  69,  119 

Gibbs  v.  State,  45  N.  J.  Law  379  65 

Gillick,  State  v.,  7  Iowa  287  76,  79 

Gillick,  State  v.,  10  Iowa  98  68 

Gilman  v.  State,  20  Tenn.  (i  Humph.)  59  137,  138 

Gilmore  v.  People,  87  111.  App.  128  119 

Gilmore,  State  v.,  9  W.  Va.  641  156 

Gitchell  v.  People,  146  111.  175  119 

Gladden  v.  State,  12  Fla.  562  46,  160 

Glascow,  State  v.,  59  Md.  209  86 

Gleason,  Com.  v.,  no  Mass.  66  149 

Glen,  People  v.,  173  N.  Y.  395  70,  127 

Glenn  v.  State,  31  Tenn.  19  104 

Glover,  State  v.,  3  G.  Greene  (Iowa)  249  156 

Goldenson,  People  v.,  76  Calif.  328  68,  103 

Gonzales,  State  v.,  26  Tex.  197  127,  128,  134 

Goodman  v.  People,  90  111.  App.  533  149 

Gordon  v.  Com.,  92  Pa.  216  119 

Gordon,  Virginia  v.,  28  Fed.  Cas.  1224  119 

Gore,  Com.  v.,  3  Dana.  (Ky.)  474  136 

Goss,  State  v.,  74  Mo.  592  136 

Gouge,  State  v.,  80  Tenn.  132  91 

Gowen,  State  v.,  7  Eng.  (Ark.)  62  157 

Graddy,  Com.  v.,  4  Metcalf  (Ky.)  223  59 

Grady,  State  v.,  84  Mo.  220  120,  132 

Graff,  State  v.,  97  Iowa  568  89 

Grand  Jury,  Bucks  County,  24  Pa.  C.  C.  Rep.  162  no 

Grand  Jury,  Challenge  to,  3  N.  J.  Law  Jour.  153                  48,  49,  58,  70,  71 

Grand  Jury,  Charge  to,  5  Dist.  Rep.  (Pa.)  130  no 

Grand  Jury,  Chief  Justice  Chase's  Charge  to,  30  Fed.  Cas.  980  102 

Grand  Jury,  Chief  Justice  Shaw's  Charge  to,  8  Am.  Jurist  216  43,  105,  160 

Grand  Jury,  Chief  Justice  Taney's  Charge  to,  30  Fed.  Cas.  998  102 

Grand  Jury,  In  re,  62  Fed.  Rep.  840  105 
Grand  Jury,  Judge  Addison's  Charges  to,  Add.  App.  (Pa.) 

I,  101,  105,  123,  131,  141,  160 

Grand  Jury,  Judge  Stowe's  Charge  to,  3  Pitts.  Rep.  (Pa.)   179  158 
Grand  Jury,  Mr.  Justice  Field's  Charge  to,  30  Fed.  Cas.  992 

101,  103,  105,  108,  127,  128,  130,  162 

Grand  Jury,  Presentment  of,  i  R.  M.  Charlton  (Ga.)  149  159 

Grand  Jury  v.  Public  Press,  4  Brews.  (Pa.)  313  116 

Granger  v.  Warrington,  8  111.  299  120 

Grant  v.  State,  2  Tex.  App.  163  69 


XXXV111                                        TABLE  OF  CASES. 

PAGB 

Granville,  State  v.,  34  La.  Ann.  1088  149 

Gray,  Allen  v.,  n  Conn.  95  167 

Green,  Com.  v.,  126  Pa.  531  no,  in,  119 

Green,  People  v.,  i  Utah  n  103 

Green,  State  v.,  66  Mo.  631  45 

Green,  State  v.,  in  Mio.  585  152 

Green  v.  State,  28  Miss.  687  87 

Green  v.  State,  4  Pickle  (Tenn.)  614  149 

Green  v.  State,  i  Tex.  App.  82  65,  66,  68 

Greene,  United  States  v.,  113  Fed.  Rep.  683                                             55,  67 

Gressly,  Com.  v.  12  Lane.  Bar  (Pa.)  52  148 

Grier  v.  Homestead  Borough,  6  Pa,  Superior  Ct.  542  145 

Griffice,  State  v.,  74  N.  C  316  73 

Griffin,  People  v.  2  Barb.  (N.  Y.)  427  87 

Griffin,  State  v.,  38  La.  Ann.  502  87 

Griffith  v.  Slinkard,  44  N.  E.  1001  167 

Grimes,  State  v.,  50  Minn.  123  161 

Griscom,  Com.  v.,  36  Pitts.  L.  J.  (Pa.)  332                                                 114 

Groome,  State  v.,  10  Iowa  308  149 

Grosbois,  In  ic,  109  Calif.  445  130 

Gross  v.  State,  2  Ind.  329  76 

Groves  v.  State,  73  Ga.  205  130 

Guillory,  State  v.,  44  La.  Ann.  317  64 

Gunkle  v.  State,  6  Baxt.  (Tenn.)  625  150 

Gurlagh,  State  v.,  76  Iowa  141  50 

Gut,  State  v.,  13  Minn.  341        .  71 

Hall's  Case,  3  Gratt.  (Va.)  593  148 

Hall  v.  State,  32  So.  750  119,  127,  128,  143 

Hall,  Watson  v.,  46  Conn.  204  12 

Hamblett  v.  Hamblett,  6  N.  H.  333  145 

Hamilton,  Com.  v.,  15  Gray  (Mass.)  480  149 

Hamilton,  State  v.,  13  Nev.  386  120 

Hamlin,  State  v.,  47  Conn.  95  73,  74,  76,  85,  103,  119 

Hammond,  Ex  Parte,  91  Calif.  545  88 

Hammond,  United  States  v.,  26  Fed.  Cas.  99  61,  63,  69,  73,  87 

Hansted,  People  v.,  135  Calif.  149  80 

Harding  v.  State,  22  Ark.  210  46 

Harding,  Territory  v.,  6  Mont.  323  64 

Haidy  v.  State,  i  Tex.  App.  556  156 

Harland  v.  Territory,  13  Pac.  453  63 

Harless  v.  United  States,  I  Morris  (Iowa)  169  81 

Harmon,  People  v.,  69  N.  Y.  Sup.  511  142 

Harper  v.  State,  42  Ind.  405  160 

Harrall  v.  State,  26  Ala.  53  134 

Harrell  v.  State,  22  Tex.  App.  692  46 

Harriman  v.  State,  2  G.  Greene  (Iowa)  270                                                135 


TABLE  OF  CASES.  XXXIX 

PAOB 

Harris,  In  re,  4  Utah  5  134 

Harris,  State  v.,  38  Iowa  242  73 

Harris,  State  v.,  7  N.  J.  Law  361  9» 

Harris,  State  v.,  91  N.  C.  656  152 

Harris,  State  v.,  97  N.  W.  1093  78 

Harris  v.  State,  13  So.  15  5* 

Harrison  v.  Com.,  123  Pa.  508  114.  '54 

Harrison,  State  v.,  19  Ark.  565  135 

Harrison  v.  State,  44  Tenn.  195  104,  no 

Hart,  State  v.,  29  Iowa  268  86 

Hart,  State  v.,  67  Iowa  142  162 

Hart,  State  v.,  15  Tex.  App.  202  66,  68 

Hart,  Territory  v.,  7  Mjont.  489  119 

Hart,  Territory  v.,  14  Pac.  7618  82,  85 

Hartley,  State  v.,  40  Pac.  372  147 

Hartranft's  Appeal,  85  Pa.  433  no,  143 

Hatfield,  Burnham  v.,  5  Blackf.  (Ind.)  21  119 

Haught  v.  Com.,  2  Va.  Cas.  3  135 

Hausenfluck  v.  Com.,  85  Va.  702  147 

Hawkins,  State  v.,  10  Ark.  71  56 

Hawks,  State  r.,  56  Minn.  129  144 

Hawles,  Sir  John,  4  State  Tr.  183  105 

Hayden,  Com.  v.,  163  Mass.  453  78,  132 

Hayes,  People  v.,  59  N.  Y.  Sup.  761  144 

Haynes,  State  v.  54  Iowa  109  60,  64 

Haywood,  State  v.,  73  N.  C.  437  58 

Haywood,  State  v.,  94  N.  C  847  87 

Hea«.ock  v.  State,  42  Ind.  393  134,  156 

Head  v.  State,  44  Miss.  731  64,  86 

Heard  v.  Pierce,  8  Cush.  (Mass.)  338  120,  134 

Heath  v.  State,  101  Ind.  512  156 

Heaton,  State  v.,  56  Pac.  843  129 

Heaton,  State  v.,  23  W.  Va.  773  136 

Heidrick,  Rahlfing  v.,  4  Phila.  (Pa.)  3  145 

Helriggle,  United  States  v.,  26  Fed.  Cas.  258  135 

Henderson,  State  v.,  29  W.  Va.  147  62 

Hensley,  State  v.,  7  Blackf.  (Ind.)  324  64 
Herndon,  State  -v.,  5  Blackf.  (Ind.)  75                                     6a,  66,  68,  73 

Hess  v.  State,  73  Ind.  537  48 

Hester  v.  State,  103  Ala.  83  52 
Hidden,  People  v.,  32  Calif.  445                                                     69,  83,  84,  87 

Hill,  Com.  v.,  ii  Cush.  (Mass.)   137  118,  119 

Hill,  State  v.,  35  S.  E.  831  148,  149 

Hill,  United  States  v.,  26  Fed.  Cas.  315  131 

Hinckley,  State  v.,  4  Minn.  345  71 

Hinkle,  State  v.,  6  Iowa  380  69,  76,  78 


xl  TABLE  OF   CASES. 

PAGB 

Hinshaw  v.  State,  47  N.  E.  157  120 

Hitchcock,  Counselman  v.,  142  U.  S.  547  145 

Kite  v.  State,  9  Yerg.  (Tenn.)  198  134 

Hodges,  Reg.  v.,  8  Car.  &  P.  195  148 

Hoffpauer,  State  v.,  21  La.  Ann.  609  68 

Hogan,  State  v.,  31  Mo.  342  151 

Hogan  v.  State,  30  Wis.  428  156 

Holcomb,  State  v.,  86  Mo.  371  77 

Holcombe  v.  State,  31  Ark.  427  156 

Hollinsberry,  United  States  v.,  26  Fed.  Cas.  345  135 

Holloway,  Reg.  v.,  9  Car.  &  P.  43  161 

Homestead  Borough,  Grier  v.,  6  Pa.  Superior  Ct.  542  145 

Hooghkerk,  People  v.,  96  N.  Y.  149  66 

Hooker  v.  State,  56  Atl.  390  119 

Hope  v.  People,  83  N.  Y.  418  143 

Hopkins  v.  Com.,  50  Pa.  9  156 

Horton  v.  State,  47  Ala.  58  87 

Horton,  State  v.,  63  N.  C.  595  119,  147 

Howard,  State  v.,  10  Iowa  101  66,  69 

Hoyt,  State  v.,  13  Minn.  132  71 

Hubbard  v.  State,  72  Ala.  164  136 

Hudson  v.  State,  i  Blackf.  (Ind.)  317  70,  85 

Hughes,  Com.  v.,  n  Pa.  C.  C.  Rep.  470  114 

Hughes,  R.  v.,  i  Car.  &  K.  519  118 
Hughes,  State  v.,  i  Ala.  655  72,  82,  136 

Hughes  v.  State,  54  Ind.  95  54 
Huidekoper  v.  Cotton,  3  Watts  (Pa.)  56  116,  118,  119 
Hulbut,  People  v.,  4  Denio  (N.  Y.)  133  120,  146,  152 

Huling  v.  State,  17  Ohio  St.  583  65,  68 

Humpeler  v.  People,  92  111.  400  150 

Humphreys,  Bartlett  v.,  Hardin  (Ky.)  513  136 

Humphreys,  Reg.  v.,  Car.  &  M.  601  152 

Hunt,  Burdick  v.,  43  Ind.  381  1 19 

Hunter  v.  Mathis,  40  Ind.  356  167 

Hunter,  People  v.,  54  Calif.  65  147 

Hunter  v.  Randall,  69  Me.  468  119 

Hunter,  United  States  v.,  15  Fed.  Rep.  712  133,  143 

Hurd,  Com.  v.,  177  Pa.  481  no 

Hurt,  State  v.,  7  Mb.  321  136 

Hurtado  v.  California,  no  U.  S.  516  33,  39 

Hyler,  People  v.,  2  Parker  Cr.  Rep.  (N.  Y.)  570  105 

Imlay  v.  Rogers,  2  Halst.   (N.  J.)  347  119 

Ingalls,  State  v.,  17  Iowa  8  64 

Ingersoll,  Territory  v.,  3  Mont.  454  71 

In  re  Annexation  to  Borough  of  Plymouth,  167  Pa.  612  76 

In  re  Archer,  96  N.  W.  442  120,  133 


TABLE  OF  CASES.  xli 

PAOB 

In  re  Baldwin,  2  Tyler  (Vt)  473  84 

In  re  Bridge  Appropriations,  9  Kulp  (Pa.)  427  127 

In  re  Bridge  in  Nescopeck,  3  Luz.  Leg.  Reg.  (Pa.)  196  66,  77 

In  re  Bridge  in  Nescopeck,  3  Luz.  Leg.  Reg.  (Pa.)  410  77 
In  re  Citizen's  Association,  8  Phila.  (Pa.)  478                           124,  135,  147 

In  re  County  Commissioners,  7  Ohio  N.  P.  450  123 

In  re  District  Attorney  U.  S.,  7  Fed.  Cas.  745  128,  129 

In  re  Ellis,  8  Fed.  Cas.  548  84,  166 

In  re  Gannon,  69  Calif.  541  88,  160 

In  re  Gardiner,  64  N.  Y.  Sup.  760  132 

In  re  Grand  Jury,  62  Fed.  Rep.  840  105 

In  re  Grosbois,  109  Calif.  445  130 

In  re  Harris,  4  Utah  5  134 
In  re  Lester,  77  Ga.  143                                                               88,  104,  138 

In  re  Miller,  17  Fed.  Cas.  295  162 

In  re  Moragne,  53  Pac.  3  153 
In  re  Morse,  87  N.  Y.  Sup.  721.                                             103,  133,  140,  150 

In  re  Rogers,  129  Calif.  468  133 

In  re  Summerhayes,  70  Fed.  Rep.  769  165 

In  re  Tillery,  43  Kan.  188  90 

In  re  Tucker,  8  Mass.  286  77 

In  re  Wadlin,  n  Mass.  142  51 
In  re  Wilson,  140  U.  S.  575                                                                46,  47,  56 

Insurance  Co.  v.  Adams,  no  Pa.  553  66 

Ivey,  State  v.,  100  N.  C.  539  132 

Jackson  v.  State,  102  Ala.  167  88 

Jackson  v.  State,  64  Ga.  344  86 

Jackson  v.  State,  76  Ga.  551  73 

Jackson  v.  State,  4  Kan.  150  134 

Jackson  v.  State,  n  Tex.  261  62 

Jackson  v.  State,  25  Tex.  App.  314  160 

Jackson,  State  v.,  21  La.  Ann.  574  33 

Jackson  v.  Wood,  2  Cow.  (N.  Y.)  819  33 
Jacobs,  State  v.t  6  Tex.  99                                                           50,  68,  84,  89 

Jadwin,  Com.  v.,  2  Law.  T.  n.  s.  (Pa.)  13  ill 

James  v.  Stale,  41  Ark.  451  157 

Jamesson,  United  States  v.,  26  Fed.  Cas.  585  135 

Jeffcoat,  State  v.,  26  S.  C.  114  68 

Jenkins  v.  State,  35  Fla.  737  50,  120 

Jenkins  v.  State,  30  Miss.  408  156 

Jetton  v.  State,  19  Tenn.  192  84,  137 

Jewell  v.  Com.,  22  Pa.  94  51 
Jewett,  People  v.,  3  Wend.  (N.  Y.)  314                                      66,  68,  73,  ?6 

Jillard  v.  Com.,  26  Pa.  169  138 

Job,  Ex  Parte,  30  Pac.  699  152 

Johnson,  Railway  Co.  v.,  55  Kan.  344  145 


xlii  TABLE  OF  CASES. 

PAQB 

Johnson  v.  State,  24  Fla.  162  156 

Johnson  v.  State,  62  Ga.  179  87 

Johnson  v.  State,  23  Ind.  32  149 

Johnson  v.  State,  33  Miss.  363  58,  68 

Johnson,  State  v.,  93  Mo.  73  152 

Johnstone  v.  Sutton,  i  Term.  Rep.  513-14  167 

Joiner,  State  v.,  19  Mo.  224  136 

Jolly,  State  v.,  7  Iowa  15  157 

Jones,  State  v.,  8  Rob.   (La.)  616  61 

Jones,  State  v.,  42  Pac.  392  156 

Jones  v.  State,  18  Fla.  889  50 

Jones  v.  State,  2  Blackf.  (Ind.)  475  76,  82,  85 

Jones  v.  State,  n  Ind  357  152 

Jones  v.  Turpin,  6  Heisk.  (Tenn.)  181  119 
Jones,  United  States  v.,  31  Fed.  Rep.  725                         69,  73,  76,  80,  86 

Jones,  United  States  v.,  69  Fed.  Rep.  973  83,  143 

Joyner  v.  State,  78  Ala.  448  134,  138 

Justices,  People  v.,  20  Johns.  (N.  Y.)  310  48 

Justus,  State  v.,  n  Ore.  178  139 

Kalloch  v.  Superior  Court,  56  Calif.  229  33 

Keating,  State  v.,  85  Md.  188  51 

Keech  v.  State,  15  Fla.  591  46,  50 

Keenan,  Com.  v.,  67  Pa.  203  148 

Keffer,  Penna.  v.,  Add.  (Pa.)  290  166 

Keithler  v.  State,  10  Smedes  &  M.  (Mass.)  192  134 
Keitler  v.  State,  4  G.  Greene  (Iowa)  291                                    70,  71,  83,  84 

Kelcher,  Com.  v.,  3  Mete.  (Ky.)  485  152 

Kelly,  People  v.,  21  How.  Pr.  Rep.  (N.  Y.)  54  120,  133 

Kelly  v.  People,  39  111.  157  156 

Kelly  v.  People,  132  111.  363  156 

Kemp  v.  State,  n  Tex.  App.  174  71 

Kendall  v.  Com.,  19  S.  W.  173  66 

Keyes,  State  v.,  8  Vt.  57  33 

Kilcrease,  State  v.,  6  S.  C.  444  137 

Kilgore  v.  State,  74  Ala.  i  50 
Kilpatrick,  United  States  v.,  16  Fed.  Rep.  765                         120,  142,  165 

Kimball,  State  v.,  29  Iowa  267  140 

King,  People  v.,  28  Calif.  265  144 

King,  People  v.,  2  Caines  (N.  Y.)  98  45,  46 

King,  State  v.,  24  Pac.  265  44 

King  v.  Baker,  Rowe's  Rep.  of  Interesting  Cases  603  166 

King  v.  Dodd,  i  Leach  C.  C.  155  144 

King  v.  Fitch,  Cro.  Chas.  414  26 

King  v.  Ford,  Yelv.  99  148,  150 

King  v.  Lukens,  i  Dall.  (Pa.)  5  135 

King  v.  Marsh,  i  N.  &  P.  187  45 


TABLE  OF  CASES. 

PAOB 

King  v.  State,  5  How.   (Miss.)   730  136,  137,  138 

King  v.  Windham,  2  Keblc  180  164 

Kirk  v.  Garrctt,  84  Md.  383  "9 

Kirk  v.  State,  13  Smedes  &  M.  (Miss.)  406  135 

Kitrol  v.  State,  9  Fla.  9.  72 

Klemmer  v.  Railroad  Co.,  163  Pa.  521  66 

Knapp,  Com.  v.,  9  Pick.   (Mass.)  498  136 

Koch  v.  State,  32  Ohio  St.  353  78 

Kouhns,  State  v.,  103  Iowa  720  68,  81 

Kovolosky,  State  v.,  92  Iowa  498  128 

Krause,  State  v.,  I  Ohio  N.  P.  91  58 

Krider,  State  v.,  78  N.  C  481  146 

Kulp,  Com.  v.,  17  Pa.  C.  C.  Rep.  561  no,  119 

Lacey  v.  State,  31  Tex.  Cr.  Rep.  78  73,  85 

Lamon,  State  v.,  10  N.  C.  175  87 

Landis,  People  v.,  139  Calif.  426  80 

Lanier,  State  v.,  90  N.  C.  714  144 

Larkin,  State  v.,  n  Nev.  314  85 

Lascelles  v.  State,  90  Ga.  347  80 

Lauder,  People  v.,  82  Mich.  109  143,  144 

Lauer,  State  v.,  41  Neb.  226  49 

Laurent  v.  State,  I  Kan.  313  154,  156 

Lawless  v.  State,  4  Lea   (Tenn.)    173  155 

Lawrence,  United  States  v.,  26  Fed.  Cas.  886  103 

Laws,  United  States  v.,  26  Fed.  Cas.  892  151 

Leathers  v.  State,  26  Miss.  73  46 
Lee,  People  v.,  2  Utah  441                                                            84,  154,  156 

Lee,  State  v.,  87  Tenn.  114  104 

Lee  v.  State,  69  Ga.  705  77,  80 

Lee  v.  State,  45  Miss.  114  85,  86 

Leigh,  Com.  v.,  38  Leg.  Int.  (Pa.)  184  114 

Leisenring,  Com.  v.t  2  Pears.  (Pa.)  466  45,  46 

Lem  Deo,  People  v.,  132  Calif.  199  140 

Lennard  v.  State,  30  S.  E.  780  145 

Lenox,  Com.  v.,  3  Brews.   (Pa.)  249  134 

Leonard,  People  v.t  106  Calif.  302  84,  160 
Lester,  In  re,  77  Ga.  143                                                                88,  104.  138 

Levally,  United  States  v.,  36  Fed.  Rep.  687  148,  151 

Levy  v.  State,  6  Ind.  281  152 

Levy  v.  Wilson,  69  Calif.  105  50,  58 

Lewis,  State  v.,  38  La.  Ann.  680  120,  149 

Lewis,  State  v.,  87  Tenn.  119  104 

Lewis'  Trial,  7  How.  St.  Tr.  249  83 

Lienberger  v.  State,  21  S.  W.  603  64 

Lightbody,  State  v.,  38  Me.  200  48 

Lightfoot,  State  v.,  78  N.  W.  41  150 


xliv  TABLE  OF   CASES. 

PAGH 

Ligon,  State  v.,  7  Port.  (Ala.)  167  60 

Liles,  State  v.,  77  N.  C.  496  62 

Lindenborn,  People  v.,  52  N.  Y.  Sup.  101  105 

Lindsay  v.  State,  24  Ohio  Cir.  Ct.  Rep.  I  144 

Linehan  v.  State,  21  So.  497  65 

Link,  Beam  v.,  27  Mo.  261  120 

Lippard,  Com.  v.,  6  S.  &  R.  (Pa.)  395  67 
Lloyd  and  Carpenter's  Case,  3  Clark  (Pa.)  188                I,  44,  106,  in,  158 

Lloyd,  United  States  v.,  26  Fed.  Cas.  986  135 

Lockett,  State  v.,  3  Heisk.   (Tenn.)  274  134 

Loeb  v.  State,  75  Ga.  258  72 

Logan,  State  v.,  104  La.  254  150 
Logan,  State  v.,  I  Nev.  509                                                            119,  143,  146 

Logan  v.  State,  50  Miss.  269  69 

Long  v.  State,  103  Ala.  55  67 

Long  v.  State,  46  Ind.  582  160 

Lott  v.  State,  18  Tex.  App.  627  46 

Love,  State  v.  4  Humph.  (Tenn.)  255  no,  132 

Low's  Case,  4  Greenl.  (Me.)  439  119,  147 

Lucy  v.  State,  8  Mo.  134  136 

Lukens,  King  v.,  i  Dall.  (Pa.)  5  135 
Lung's  Case,  i  Conn.  428                                                        90,  103,  128,  147 

McAvoy,  United  States  v.,  26  Fed  Cas.  1044  127,  134 

McBroom,  State  v.,  127  N.  C.  528  150 

McCann,  State  v.,  I  Meigs    (Tenn.)   91  135 

McClary  v.  State,  75  Ind.  260  68,  86 

MfcComb,  Com.  v.,  157  Pa.  611  no,  119 

McCourtney,  State  v.,  6  Mo.  649  136 

McCoy,  Ex  Parte,  64  Ala.  201  67 

McCuller  v.  State,  49  Ala.  39  156 
McCullough  v.  Com.,  67  Pa.  30                                                  101,  106,  in 

McElhanon  v .  People,  92  111.  369  69 

McGregg  v.  State,  4  Blackf.   (Ind.)   101  134 

McGuffie  v.  State,  17  Ga.  497  148,  149 

McGuire  v.  People,  2  Parker  Cr.  Rep.  (N.  Y.)  148  48 
Mclntire  v.  Com.,  4  S.  W.  i                                                         132,  143,  147 

McKay,  People  v.,  18  Johns.  (N.  Y.)  212  48 

McLellan  v.  Richardson,  13  Me.  82  120 

McMahon,  United  States  v.,  26  Fed.  Cas.  1131  64 

McNamara,  State  v.,  3  Nev.  70  49,  58 

McNeill,  State  v.,  93  N.  C.  552  60,  147 

McNinch,  State  v.,  12  S.  C.  89  80,  128. 

McPherson,  State  v.,  87  N.  W.  421  120 

McQuillen  v.  State,  8  Smedes  &  M.  (Miss.)  587  87 

McTigue  v.  State,  63  Tenn.  313  73 

McWaters  v.  State,  10  Mo.  167  136 


TABLE  OF  CASES. 

PAOI 

Mackey  r.  People,  2  Colo.  13  161 

Mackin  v.  United  States,  117  U.  S.  328  33 

Madden,  United  States  v.,  36  Fed.  Cas.  1138  131 

Maddox,  State  v.,  \  Lea  (Tcnn.)  671  81 

Magrath,  State  v.,  44  N.  J.  Law  227  149 

Maher  v.  State,  I  Port.  (Ala.)  265  48 

Maher  v.  State,  3  Minn.  444  71 

Manahan,  People  v.,  32  Calif.  68  72 

Maples  v.  State,  3  Heisk.  (Tenn.)  408  156 

Marsh,  King  v.,  i  N.  &  P.  187  45 

Marsh,  R.  v.,  6  Ad.  &  El.  236  119 

Marsh,  State  v.,  13  Kan.  596  58 

Marshall,  State  v.,  74  N.  W.  763  143 

Marshall,  Thornton  v.,  92  Ga.  548  167 

Martin,  State  v.,  2  Ired.  (N.  C.)  101  87 

Martin,  State  v.,  82  N.  C.  672  58 

Martin  v.  State,  30  Neb.  507  151 

Martin,  United  States  v.,  50  Fed.  Rep.  918  152 

Mason  v.  State,  81  S.  W.  718  139 

Mathis,  Hunter  v.,  40  Ind.  356  167 

Matthews  v.  State,  58  S.  W.  86  162 

Mattson,  Proprietor  v.,  Pa.  Colonial  Cas.  35  31 

May,  State  v.,  50  Ind.  170  89 

Mayes,  Talton  v.,  163  U.  S.  376  33 

Mead,  Com.  v.,  12  Gray  (Mass.)  167  119 

Medaris  v.  State,  10  Yerg.   (Tenn.)  239  135 
Meiers  v.  State,  56  Ind.  336                                                                86,  88,  89 

Mellor,  State  v.,  13  R.  I.  666  68 
Mershon  v.  State,  51  Ind.  14                                                                69,  85,  86 

Mesca,  Res.  v.,  i  Dall.  (Pa.)  73  64 

Mlesmer  v.  Com.,  26  GratL   (Va.)  976  48 
Metropolitan  Traction  Co.,  People  v.,  50  N.  Y.  Sup.  1117     139,  143,  144,  146 

Mewherter,  State  v.,  46  Iowa  88  120 

Mickel,  State  v.,  65  Pac.  484  128 

Millain,  State  v.,  3  Nev.  409  77 

Millar  v.  State,  2  Kan.  174  156 

Miller,  In  re,  17  Fed.  Cas.  295  162 

Miller,  State  v.,  53  Iowa  84  51 

Miller,  State  v.,  95  Iowa  368  139 

Miller,  State  v.,  2  Blackf.  (Ind.)  35  73 

Miller  v.  State,  69  Ind.  284  68,  87 

Miller  v.  State,  33  Miss.  356  46 

Miller  v.  State,  28  So.  208  128 

Mills  v.  State,  76  Md.  274  84 

Millville  Borough,  10  Pa.  C.  C.  Rep.  321  121 
Minor,  Com.  v.,  89  Ky.  555                                                                   142,  145 


Xlvi  TABLE  OF  CASES. 

PAGE 

Moan,  Ex  Parte,  65  Calif.  216  "5 

Mohler  v.  People,  24  111.  26  9* 

Moice,  People  v.,  15  Calif.  329  69 

Moister,  Com.  v.,  3  Pa.  C.  C.  Rep.  539  "I 

Moles,  State  v.,  9  Mb.  694  136 

Molett  v.  State,  33  Ala.  408  136 

Molineaux,  People  v.,  58  N.  Y.  Sup.  ISS  *43>  146 

Mooney,  State  v.,  10  Iowa  506  51 

Moore  v.  Com.,  9  Leigh.   (Va.)  639  62 

Montgomery  v.  State,  3  Kan.  263  5° 

Moore  v.  State,  13  Smedes  &  M.  (Miss.)  259  135 

Moore  v.  State,  81  S.  W.  48  156 

Moragne,  In  re,  53  Pac.  3  153 

Morgan,  People  v.,  95  N.  W.  542  58 

Morrison  v.  State,  41  Tex.  516  143 
Morse,  In  re,  87  N.  Y.  Sup.  721                                               log,  *33,  140,  150 

Morton,  Com.  v.,  34  Leg-  Int.  (Pa.)  438  54 

Mbse  v.  State,  35  Ala.  421  156 

Moses  v.  State,  58  Ala.  117  64 

Motley,  State  v.,  7  S.  C.  327  62»  87 

Moyers  v.  State,  n  Humph.  (Tenn.)  40  135 

Mundell,  United  States  v.,  27  Fed.  Cas.  23  135 

Murphy  v.  State,  86  Ala.  45  65 

Murphy,  state  v.,  47  Mb.  274  134 

Muscogee  Railroad  Co.,  Winter  v.,  II  Ga.  438  50,  51 
Musick  v.  People,  40  111.  268                                                              69,  76,  78 

Mussey  v.  Mussey,  68  Me.  346  145 

Muzingo,  State  v.,  Meigs  (Tenn.)   112  156 

Nagle,  United  States  v.,  27  Fed.  Cas.  68  134 

Naughton,  People  v.,  38  How.  Pr.  Rep.  (N.  Y.)  43O  "i,  *35 

Neal  v.  Delaware,  103  U.  S.  370  67 

Nealon  v.  People,  39  111.  App.  481  50,  160 

Nebraska,  Bollyn  v.,  176  U.  S.  83  33 

New  Bethlehem  Borough,  Com.  v.  15  Pa,  Superior  Ct.  158  114 

Newfane,  State  v.,  12  Vt.  422  78,  81 

Newman  v.  State,  43  Tex.  525  161 

Newman  v.  State,  14  Wis.  393  73 

Newton,  R.  v.,  2  M.  &  Rob.  503  152 

Newton  v.  State,  21   Fla.  53  5°,  52 

Nichol,  People  v.,  34  Calif.  211  148 

Nichols  v.  State,  46  Miss.  284  156 

Nicholls  v.  State,  5  N.  J.  Law  539  48 

Nixon  v.  State,  68  Ala.  535  49,  Si 

Noles  v.  State,  24  Ala.  672  33 

Nomaque  v.  People,  Breese  (111.)   109  149 

Noonan,  Com.  v.,  38  Leg.  Int.  (Pa.)  184  90 


TABLE  OF  CASES.  xlvii 


Nordstrom,  State  v.,  7  Wash.  506  33 

Morris  House  v.  State,  3  G.  Greene  (Iowa)  513  56 

Northey,  People  v.,  77  Calif.  618  80,  121 

Noyes,  State  v.,  87  Wis.  340  88 

Nunn  v.  State,  I  Kelly  (Ga.)  243  132 

O'Brien  v.  State,  91  Ala.  16  89,  152 

O'Byrne  v.  State,  51  Ala.  25  83,  89 

Offutt,  State  v.,  4  Blackf.  (Ind.)  355  118 

Ogle,  Ex  Parte,  61  S.  W.  122  46 

Ogle  v.  State,  63  S.  W.  1009  46 

O'Hair  v.  People,  32  111.  App.  277  104 

Oliver  v.  Com.,  95  Ky.  372  150 

Oliver  v.  State,  66  Ala.  8  53 

O'Neill,  People  v.,  107  Mich.  556  128 
Osbome,  State  v.,  61  Iowa  330  65,  76,  79,  80 
Ostrander  v.  State,  18  Iowa  435  45,  69,  88,  147 

Overshiner  v.  Com.,  2  B.  Mon.   (Ky.)  344  149 

Overstreet,  State  v.,  128  Mo.  470  89,  103 

Owens  v.  State,  25  Tex.  App.  552  72,  78 

Oxford,  State  v.,  30  Tex.  428  120 
Palmer,  United  States  v.,  27  Fed.  Cas.  410  69,  78,  103 

Palmore  v.  State,  29  Ark.  248  62,  70 

Parker,  Com.  v.,  2  Pick.  (Mass.)  550  50 

Parker  v.  People,  13  Colo.  155  89 

Parker  v.  Territory,  52  Pac.  361  126 

Parks,  State  v.,  21  La.  Ann.  251  61,  87 

Partner  v.  State,  41  Ala.  416  89 
Parrish,  State  v.,  27  Tenn.  80  104,  150 

Pate,  State  v.,  67  Mo.  488  160 

Patrick  v.  State,  16  Neb.  330  69 

Patterson  v.  Com.,  86  Ky.  313  156 

Pearce  v.  Com.  8  S.  W.  893  156 

Peeples  v.  State,  35  So.  223  156 

Pence  v.  Com.,  95  Ky.  618  157 

Pendry,  Territory,  v.,  22  Pac.  760  143 

Penfield  v.  Carpenter,  13  Johns.  (N.  Y.)  350  145 

Penna.  v.  Keffer,  Add.  (Pa.)  290  166 

People,  Andrews  v.,  117  111.  195  135 

People  v.  Arnold,  15  Calif.  476  69 

People,  Barron  v.,  73  111.  256  56 

People,  Bartley  v.,  156  111.  234  135 

People,  Beasley  v.,  89  111.  571  51 

People  v.  Beatty,  14  Calif.  566  69,  103 

People  v.  Borgstrom,  178  N.  Y.  254  64,  65 

People  v.  Bradner,  44  Hun.  (N.  Y.)  233  129 

People,  Brannigan  v.,  3  Utah  488  45,  56 


xlviii                                           TABLE  OF  CASES. 

PAGE 

People  v.  Briggs,  60  How.  Pr.  Rep.  (N.  Y.)  17  120,  144 

People  v.  Butler,  8  Calif.  435  147 

People  v.  Butler,  i  Idaho  231  134 

People,  Carpenter  v.,  64  N.  Y.  483  65 

People  v.  Clements,  5  N.  Y.  Cr.  Rep.  288  153 

People,  Collins  v.,  39  111.  233  150 

People  v.  Colmere,  23  Calif.  632  85 

People,  Cox  v.f  80  N.  Y.  500  86 

People  v.  Cuitano,  15  Calif.  327  48 

People,  Davidson  v.,  go  111.  221  73 

People,  Dawson  v.,  25  N.  Y.  399  157 

People  v.  District  Court,  29  Colo.  83  76 

People,  Dolan  v.,  64  N.  Y.  485  58 

People  v.  Earnest,  45  Calif.  29  89 

People,  Empson  v.,  78  111.  248  161 

People,  Findley  v.,  i  Manning  (Mich.)  234                                    51,  52,  161 

People,  Fitzpatrick  v.,  98  111.  269  156 

People  v.  Fitzpatrick,  30  H!un.  (N.  Y.)  493                                                  66 

People  v.  Gallagher,  55  Calif.  462  58 

People,  Gardiner  v.,  3  Scam.  (111.)  83  149 

People,  Gardner  v.,  20  111  430  156 

People  v.  Gatewood,  20  Calif.  146  147 

People  v.  Geiger,  49  Calif.  643  69 

People,  Gilmore  v.,  87  111.  App.  128  119 

People,  Gitchell  v.,  146  111.  175  119 

People  v.  Glen,  173  N.  Y.  395  70,  127 

People,  v.  Goldenson,  76  Calif.  328  68,  103 

People,  Goodman  v.,  90  111.  App.  533  149 

People  v.  Green,  i  Utah  n  103 

People  v.  Griffin,  2  Barb.  (N.  Y.)  427  87 

People  v.  Hansted,  135  Calif.  149  80 

People  v.  Harmon,  69  N.  Y.  Sup.  511  142 

People  v.  Hayes,  59  N.  Y.  Sup.  761  144 

People  v.  Hidden,  32  Calif.  445  69,  83,  84,  87 

People  v.  Hooghkerk,  96  N.  Y.  149  66 

People,  Hope  v.,  83  N.  Y.  418  143 

People  v.  Hulbut,  4  Denio  (N.  Y.)  133  120,  146,  152 

People,  Humpeler  v.,  92  111.  400  150 

People  v.  Hunter,  54  Calif.  65  147 

People  v.  Hyler,  2  Parker  Cr.  Rep.  (N.  Y.)  570  105 

People  v.  Jewett,  3  Wend.  (N.  Y.)  314  66,  68,  73,  76 

People,  Kelly  v.,  39  111.  157  156 

People,  Kelly  v.,  132  111.  363  156 

People  v.  Kelly,  21  How.  Pr.  Rep.  (N.  Y.)  54                                  120,  133 

People  v.  King,  28  Calif.  265  144 

People  v.  King,  2  Caines   (N.  Y.)  98  45,  46 


TABLE  OF  CASES.  xlix 


People  r.  Landis,  139  Calif.  426  80 

People  v.  Lauder,  82  Mich.  109  143,  144 
People  v.  Lee,  2  Utah  441  84,  154,  156 

People  r.  Lem  Deo,  132  Calif.  199  140 

People  v.  Leonard,  106  Calif.  302  84,  160 

People  v.  Lindenborn,  52  N.  Y.  Sup.  101  105 

People,  McElhanon  v.,  92  111.  369  69 

People,  McGuire  v.,  2  Parker  Cr.  Rep.  (N.  T.)  148  48 

People  v.  McKay,  18  Johns.  (N.  Y.)  212  48 

People,  Mackey  v.,  2  Colo.  13  161 

People  v.  Manahan,  32  Calif.  68  72 
People  v.  Metropolitan  Traction  Co.,  50  N.  Y.  Sup.  1117  139,  143,  144,  146 

People,  Mohler  v.,  24  111.  26  91 

People  v.  Moice,  15  Calif.  329  69 

People  v.    Molineux,  58  N.  Y.  Sup.  155  143,  146 

People  v.  Morgan,  95  N.  W.  542  58 
People,  Musick  v.,  40  111.  268  69,  76,  78 

People  v.  Naughton,  38  How.  Pr.  Rep.  (N.  Y.)  430  121,  135 

People,  Nealon  v.,  39  111.  App.  481  50,  160 

People  v.  Nichol,  34  Calif.  211  148 

People,  Nomaque  v.,  Breese  (111.)   109  149 

People  v.  Northey,  77  Calif.  618  80,  121 

People,  O'Hair  v.,  32  111.  App.  277  104 

People  v.  O'Neill,  107  Mich.  556  128 

People,  Parker  v.,  13  Colo.  155  89 

People  v.  Petrea,  92  N.  Y.  128  58,  66 

People  v.  Phelan,  123  Calif.  551  71 

People,  Preuit  v.,  5  Neb.  377  58 

People  v.  Price,  2  N.  Y.  Sup.  414  144 

People,  Rainey  v.,  3  Gil.  (111.)  71  156 

People  v.  Ramirez,  56  Calif.  533  140 

People,  Raymond  v.,  30  Pac.  504  140 

People,  Regent  v.,  96  111.  App.  189  128 
People  v.  Reigel,  78  N.  W.  1017  44,  56,  65 
People  v.  Roberts,  6  Calif.  214  91,  147,  149 

People  v.  Robinson,  2  Parker  Cr.  Rep.  (N.  Y.)  235  68,  87 

People  v.  Romero,  18  Calif.  89  65 

People  v.  Rose,  52  Hun.  (N.  Y.)  33  93 

People,  Sault  v.,  34  Pac.  263  153 

People  v.  Scannell,  72  N.  Y.  Sup.  449  139 

People  v.  Sellick,  4  N.  Y.  Cr.  Rep.  329  142,  162 

People  v.  Shattuck,  6  Abb.  (N.  Y.)  33  119 

People  v.  Shea,  147  N.  Y.  78  162 
People  v.  Sheriff  of  Chautauqua  County,  n  Gv.  Proc.  Rep.  (N. 

Y.)  172  150,  160,  163 

People,  Shoop  v.,  45  111.  App.  no  119,  128 

4 


TABLE  OF  CASES. 

PAGE 

People  v.  Simmons,  119  Calif,  i  46,  69 

People  v.  Singer,  18  Abb.  N.  C.  96  144 

People  v.  Smith,  76  N.  W.  124  77 

People  v.  Southwell,  46  Calif.  141  68 

People  v.  Stern,  68  N.  Y.  Sup.  732  142 

People,  Stone  v.,  2  Scam.   (111.)  326  161 

People  v.  Strong,  i  Abb.  Prac.  Rep.  N.  S.  (N.  Y.)  244  142 

People  v.  Stuart,  4  Calif.  218  143 

People,  Thayer  v.,  2  Doug.  (Mich.)  417  70 

People  v.  The  Justices,  20  Johns.  (N.  Y.)  310  48 

People  v.  Thompson,  81  N.  W.  344  120 

People,  Thornell  v.,  n  Colo.  305  156 

People,  Thorpe  v.,  3  Utah  441  49 

People  v.  Thurston,  5  Calif.  69  45 

People  v.  Tinder,  19  Calif.  539  105 

People,  Walker  v.,  22  Colo.  415  115 

People  v.  Warren,  109  N.  Y.  615  112,  153 

People  v.  White,  81  111.  333  160 

People  v.  Willis,  52  N.  Y.  Sup.  808  144 

People,  Wilson  v.,  3  Colo.  325  60,  68 

People  v.  Winant,  53  N.  Y.  Sup.  695  146 

People  v.  Wintermute,  46  N.  W.  694  65 

People,  Yates  v.,  38  111.  527  91,  151 

People  v.  Young,  31  Calif.  563  118,  121 

Pequea  Creek  Bridge,  68  Pa.  427  122 

Perkins  v.  State,  92  Ala.  66  88 

Perkins  v.  State,  4  Ind.  222  119 

Perry,  State  v.,  29  S.  E.  384  45,  46,  75 

Peter  v.  State,  3  How.  (Miss.)  433  91,  135 

Peters  v.  State,  98  Ala.  38  84 

Peters  v.  State,  n  Tex.  762  48 

Peterson,  State  v.,  61  Minn.  73  132,  155 

Petrea,  People  v.,  92  N.  Y.  128  58,  66 

Pfaff,  Com.  v.,  5  Pa.  Dist.  Rep.  59  in 

Phelan,  People  v.,  123  Calif.  551  71 

Phillips,  State  v.,  2  Ala.  297  48 

Phillips  v.  State,  68  Ala.  469  65 

Pickering,  Proprietor  v.,  Pa.  Colonial  Cases  32  31 

Pierce,  Heard  v.,  8  Cush.  (Mass.)  338  120,  134 

Pierce,  State  v.,  8  Iowa  231  50 

Pierce,  State  v.,  go  Iowa  506  64 

Pierce  v  State,  12  Tex.  210  93 

Pinson  v.  State,  23  Tex.  579  148 

Pittman  v.  State,  25  Fla.  648  157 

Pitner  v.  State,  23  Tex.  App.  366  33 

Plumer,  United  States  v.,  27  Fed.  Cas.  561  148 


TABLE  OF  CASES.  H 

PAOK 

Plymouth,  In  re  Annexation  to  Borough  of,  167  Pa.  612  76 

Pointer  r.  State,  89  Ind.  255  68 

Pond  v.  State,  47  Mass.  39  156 

Porter,  United  States  v.,  27  Fed.  Cas.  595  119 

Porterfield  v.  Com.,  91  Va.  801  124 
Portis  v.  State,  23  Miss.  578  50,  83,  84,  85 

Poulterer's  Case,  The,  9  Co.  55  b.  117,  167 

Powers,  State  v.,  59  S.  C.  200  49 

Powle's  Case,  2  Rolle  Rep.  52  148 

Prescott  v.  State,  19  Ohio  184  33 

Presentment  of  Grand  Jury,  i  R.  M.  Charlt.  (Ga.)   149  159 

Preuit  v.  People,  5  Neb.  377  58 

Price,  Com.  v.,  3  Pa.  C.  C.  Rep.  175  138,  146 

Price  v.  Com.,  21  Gratt.  (Va.)  846  149 

Price,  People  v.,  2  N.  Y.  Sup.  414  144 

Priestley,  Com.  v.,  10  Dist.  Rep.  (Pa.)  217  153 

Prior,  Res.  v.,  i  Yeates  (Pa.)  206  34 

Pritchett,  Com.  v.,  74  Ky.  277  78 

Proprietor  v.  Mattson,  Pa.  Colonial  Cases  35  31 

Proprietor  i:  Pickering,  Pa.  Colonial  Cases  32  31 

Public  Press,  Grand  Jury  v.,  4  Brews.  (Pa.)  313  116 

Pybos  v.  State,  3  Humph.  (Tenn.)  49  45 

Queen  v.  Simmonite,  i  Cox  C.  C.  30  152 

Quimby,  State  v.,  51  Me.  395  72 

R.  v.  Cooke,  8  Car  &  P.  582  148,  152 

R.  r.  Hughes,  i  Car.  &  K.  519  118 

R.  r.  Marsh,  6  Ad.  &  El.  236  119 

R.  v.  Newton,  2  M.  &  Rob.  503  152 

Rahlfing  v.  Heidrick,  4  Phila.  (Pa.)  3  145 

Railroad  Co.,  Klemmer  v.,  163  Pa.  521  66 

Railroad  Co.,  Sherman  v.,  106  N.  Y.  542  145 

Railroad  Co.,  Winter  v.,  II  Ga.  438  50,  51 

Railway  Co.,  v.  Johnson,  55  Kan.  344  145 

Rainey  v.  People,  3  Gil.  (111.)  71  156 

Rambo,  Cock  v.,  Pa.  Colonial  Cases  79  32 

Ramirez,  People  v.,  56  Calif.  533  140 

Rampey  v.  State,  83  Ala.  31  49,  50 

Ramsey  v.  State,  21  So.  209  85 

Rand,  State  v.,  33  N.  H.  216  87 

Randall,  Hunter  v.,  69  Me.  468  119 

Rawls  v.  State,  8  Smedes  &  M.  (Miss.)  599  51 

Raymond  v.  People,  30  Pac.  504  140 

Rector  v.  Smith,  n  Iowa  302  158,  167 

Reed,  State  v.,  67  Me.  127  134 
Reed  v.  State,  I  Tex.  App.  I  65,  68,  69,  71 
Reed,  United  States  v.,  27  Fed.  Cas.  727  48,  55,  66,  74,  119,  123,  142 


lii  TABLE  OF  CASES. 

PAGB 

Reeves  v.  State,  84  Ind.  116  156 
Reeves,  United  States  v.,  27  Fed.  Cas.  750                         63,  69,  74,  86,  122 

Reg.  v.  Austin,  4  Cox  C.  C.  385  152 

Reg.  v.  Hodges,  8  Car.  &  P.  195  148 

Reg.  v.  Holloway,  9  Car.  &  P.  43  161 

Reg.  v.  Humphreys,  Car.  &  M.  601  152 

Reg.  v.  Russell,  i  Car.  &  M.  247  139 

Regent  v.  People,  96  111.  App.  180  128 

Reich  v.  State,  53  Ga  73  64 

Reid,  State  v.,  20  Iowa  413  6q,  i6t 
Reigel,  People  v.,  78  N.  W.  1017                                                     44,  56,  65 

Reinhart,  State  v.,  38  Pac.  822  152 

Reisz,  State  v.,  48  La.  Ann.  1446  84 

Res.  v.  Burns,  i  Yeates   (Pa.)   370  34 

Res.  v.  Miesca,  i  Dall.  (Pa.)  73  64 

Res.  v.  Prior,  i  Yeates  (Pa.)  206  34 
Res.  v.  Shaffer,  i  Dall.  (Pa.)  236                                        101,  103,  105,  140 

Res.  v.  Wray,  3  Dall.  (Pa.)  490  34 

Rex.  v.  Dickinson,  Russ.  &  Ry.  Crown  Cases,  401  139 

Rex  v.  Fieldhouse,  I   Cowper  325  147 

Reynolds,  Com.  v.,  2  Kulp.   (Pa.)  345  no 

Reynolds,  Ex  Parte,  34  S.  W.  120  46 

Reynolds  v.  State,  u  Tex.  120  134,  157 

Reynolds  v.  United  States,  98  U.  S.  145  45 

Reynolds,  United  States  v.,  i  Utah  226  76 

Rice  v.  State,  3  Kan.  141  44 

Rich,  Com.  v.,  14  Gray  (Mass.)  335  160 

Richard,  State  v.,  50  La.  Ann.  210  132 

Richards  v.  State,  22  Neb.  145  115 

Richardson  v.  Com.,  76  Va.  1007  140 

Richardson,  McLellan  v.,  13  Me.  82  120 
Richardson,  United  States  v.,  28  Fed.  Rep.  61                                  55,  69,  86 

Rickey,  State  v.,  g  N.  J.  Law  293  49 

Rickey,  State  v.,  10  N.  J.  Law  83  64 

Ridgway,  Com.  v.,  2  Ash.  (Pa.)  247  164 

Ridling  v.  State,  56  Ga.  601  91 

Riley,  United  States  v.,  74  Fed.  Rep.  210  152 

Ripperdon,  Com.  v.,  Litt.  Sel.  Cas.  (Ky.)   194  148 

Rippey  v.  State,  29  Tex.  App.  37  157 
Roberts,  People  v.,  6  Calif.  214                                                       91,  147,  149 

Roberts,  State  v.,  n  Mo.  510  136 

Roberts,  State  v.,  2  Dev.  &  Bat.  (N.  C.)  540  138 

Robeson  v.  State,  50  Tenn.  266  104 

Robinson  v.  Com.,  88  Va.  900  48,  87 

Robinson,  People  v.,  2  Parker  Cr.  Rep.  (N.  Y.)  235  68,  87 

Robinson,  State  v.,  2  Lea  (Tenn.)  114  143 


TABLE  OP  CASES.  KH 

PAOI 

Robinson  v.  State,  33  Ark.  180  156 

Robinson  v.  State,  24  Tex.  App.  4  148 

Roby  v.  State,  74  Ga.  812  58 

Rocco  v.  State,  37  Miss.  357  119 

Rock,  State  v.,  57  Pac.  532  90 

Rockafellow,  State  v.,  6  N.  J.  Law  332  62 

Rodes  v.  State,  10  Lea.  (Tenn.)  414  135 

Roe  v.  State,  2  So.  459  93 

Rogers  v.  Alabama,  192  U.  S.  226  67 

Rogers,  Imlay  v.,  2  Halst.  (N.  J.)  347  119 

Rogers,  In  re,  129  Calif.  468  133 

Rogers,  State  v.,  37  Mo.  367  136 

Rohfrischt,  State  v.,  12  La.  Ann.  382  150 
Rolland  v.  Com.,  82  Pa.  306                                         62,  65,  66,  70,  73,  77,  85 

Romero,  People  v.,  18  Calif.  89  65 

Romero,  Territory  v.,  2  N.  Mex.  474  87 

Rondeau,  United  States  v.,  16  Fed.  Rep.  109  55,  69 

Rose,  People  v.,  52  Hun.  (N.  Y.)  33  93 

Ross  v.  State,  I  Blackf.  (Ind.)  390  71,  85 

Ross,  State  v.,  14  La.  Ann.  364  115 

Roth  v.  State,  3  Ohio  Cir.  Ct.  Rep.  59  73,  74 

Rothschild  v.  State,  7  Tex.  App.  519  128,  139 

Rovnianck,  Com.  v.,  12  Pa.  Superior  Ct.  86  138 

Rowan  v.  State,  30  Wis.  129  33 
Rowand,  Com.  v.,  82  Pa.  405              ,                                           no,  112,  152 

Rowland,  State  v.,  36  La.  Ann.  193  61,  87 

Rudd,  Com.  v.,  3  Ky.  Law  Rep.  328  78 

Rumsey  v.  Territory,  21  Pac.  152  63 

Runnels  v.  State,  28  Ark.  121  51 

Russell,  Reg.  v.,  \  Car.  &  M.  247  139 

Russell,  State  v.,  90  Iowa  569  80 

Russell  v.  State,  33  Ala.  366  71 

Russell  v.  State,  10  Tex.  288  93 

Ruthven,  State  v.,  58  Iowa  121  69 

Rutzell  v.  State,  15  Ark.  67  103 

Ryan,  Com.  v.,  5  Mass.  90  81 

Salge,  State  v.,  2  Nev.  321  134 
Salter,  Com.  v.,  2  Pears.  (Pa.)  461                 45,  46,  54,  66,  128,  129,  138,  156 

Sanborn,  Com.  v.,  116  Mass.  61  124 

Sanders  v.  State,  55  Ala.  183  87 

Sandford,  United  States  v.,  27  Fed.  Cas.  952  135 

Sandoz,  State  v.,  37  La.  Ann.  376  156 

Sargent,  Com.  v.,  Thach.  Cr.  Cas.  (Mass.)  116  148 

Sault  v.  People,  34  Pac.  263  152 

Sayer's  Case,  8  Leigh.   (Va.)   722  147 

Scannell,  People  v.,  72  N.  Y.  Sup.  449  129 


Hv  TABLE  OF  CASES. 

PAGE 

Scarlett's  Case,  12  Co.  98  42,  117.  167 

Schall,  Com.  v.,  9  Lane.  Law  Rev.   (Pa.)  332  m,  138,  151 

Schieler,  State  v.,  37  Pac.  272  84 

Schmidt,  Ex  Parte,  71  Calif.  212  120 

Scott,  State  v.,  25  Ark.  107  135 

Seaborn,  State  v.,  15  N.  C.  305  86,  87 

Sears,  State  v.,  86  Mo.  169  136 

Sears,  State  v.,  61  N.  C.  146  68 

Sellick,  People  v.,  4  N.  Y.  Cr.  Rep.  329  142,  162 

Shackelford,  United  States  v.,  27  Fed.  Cas.  1037  135 
Shaffer,  Res.  v.,  i  Dall.  (Pa.)  236                                        101,  103,  105,  140 

Shaftesbury's  Case,  8  How.  St.  Tr.  774  29,  30,  117 

Sharp,  State  v.,  no  N.  C.  604  80 

Shattuck,  People  v.,  6  Abb.  (N.  Y.)  33  119 

Shattuck  v.  State,  n  Ind.  473  127,  128 

Shea,  People  v..  147  N.  Y.  78  162 

Shelton,  State  v.,  64  Iowa  333  76,  78,  147 

Shepard,  United  States  v.,  27  Fed.  Cas.  1056  113,  115,  135 

Sheppard,  Com.  v.,  20  Pa.  Superior  Ct.  417  in,  114 

Sheridan's  Trial,  31  How.  St.  Tr.  567  74,  75 
Sheriff  of  Chautauqua  County,  People  v.,  II  Civ.  Proc,  Rep.   (N. 

Y.)  172  150,  160,  163 

Sherman  v.  Railroad  Co.,  106  N.  Y.  542  145 

Shew,  Com.  v.,  8  Dist.  Rep.  (Pa.)  484  68,  87 

Shippey,  State  v.,  10  Minn.  223  149 

Shoop  v.  People,  45  111.  App.  no  119,  128 

Shope  v.  State,  32  S.  E.  140  80 

Shouse  v.  Com.,  5  Pa.  83  148 

Shropshire  v.  State,  12  Ark.  190  87 

Shubel,  Com.  v.,  4  Pa.  C.  C.  12  in 

Shumpert,  State  v.,  i  S.  E.  85  33 

Shupp,  Com.  v.,  6  Kulp  (Pa.)  430  in 

Silvers,  State  v.,  82  Iowa  714  50 

Simmonite,  Queen  v.,  i  Cox  C.  C.  30  152 

Simmons  v.  Com.,  89  Va.  156  156 

Simmons,  People  v.,  119  Calif.  I  46,  69 

Simmons,  United  States  v.,  46  Fed.  Rep.  65  139,  150 

Sintms  v.  State,  60  Ga.  145  119 

Simons,  Com  v.,  6  Phila.  (Pa.)  167  m,  114 

Simpson  v.  State,  34  S.  E.  204  80 

Sims  v.  State,  45  S.  W.  705  139 

Singer,  People  v.,  18  Abb.  N.  C.  96  144 

Skeggs,  Com.  v.,  66  Ky.  19  120 

Skinner  v.  State,  30  Ala.  524  152 

Skinner,  State  v.,  34  Kan.  256  67 

Slagel  v.  Com.,  5  Ky.  Law  Rep.  545  72 


TABLE  OF  CASES.  Iv 

PACK 

Slinkard,  Griffith  v.,  44  N.  E.  1001  167 

Smallwood,  State  v.,  68  Mb.  192  87 

Smith,  Com.  v.,  10  Bush.  (Ky.)  476  61,  87 
Smith,  Com.  v.,  9  Mass.  107                                                              73,  81.  85 

Smith,  Com.  v.,  4  Pa.  Superior  Ct  I  54 

Smith,  Com.  r.,  27  S.  W.  810  86 

Smith,  People  v.,  76  N.  W.  124  77 

Smith,  Rector  v.,  n  Iowa  302  158,  167 

Smith,  State  v.,  88  Iowa  178  52 

Smith,  State  v.,  67  Me.  328  49 

Smith,  State  v.,  80  N.  C.  410  62,  63 

Smith,  State  v.,  38  S.  C.  270  49 

Smith,  State  v.,  19  Tenn.  99  104 

Smith  v.  State,  19  Conn.  493  122 

Smith  v.  State,  90  Ga.  133  58 

Smith  v.  State,  i  Humph.   (Tenn.)  396  130 

Smith  v.  State,  I  Tex.  App.  133  68 

Smith  v.  State,  19  Tex.  App.  95  84,  160 

Smith,  United  States  v.,  27  Fed.  Cas.  1186  145 

Smith,  United  States  v.,  40  Fed.  Rep.  755  115 

Smyth,  Com.  v.,  n  Cush.  (Mass.)  473  149 

Sontag,  Ex  Parte,  64  Calif.  525  119,  121 

Sopher,  State  v.,  35  La.  Ann.  975  149 

Southwell,  People  v.,  46  Calif.  141  68 

Sparks  v.  Com.,  9  Pa.  354  150,  154 

Sparrenberger  v.  State,  53  Ala.  481  142 

Spattenhover,  Com.  v.,  8  Luz.  Leg.  Reg.  (Pa.)  101  143 

Spigener  v.  State,  62  Ala.  383  72,  119 

Spratt  v.  State,  8  Mo.  247  150 

Squire,  State  v.,  10  N.  H.  558  165 

Staley,  State  v.,  71  Tenn.  565  104 

Stanford,  State  v.,  20  Ark.  145  135 

Stanley  v.  State,  88  Ala.  154  157 

Stanley  v.  State,  16  Tex.  557  62 

Stanley  r.  United  States,  33  Pac.   1025  65 

Staples,  Territory  v.,  26  Pac.  166  139 

Stark  r.  Bindley,  52  N.  E.  804  103 

State,  Abram  r.,  25  Tex.  589  93 

State  r.  Adam,  40  La.  Ann.  745  128 

State,  Adams  v.,  28  Fla.  511  63 

State,  Adams  v.,  n  Ind.  304  156 

State  r.  Adams,  20  Iowa  486  72 

State  v.  Adams,  70  Tenn.  647  104 

State  v.  Addison,  2  S.  C.  356  128 

State,  Alden  v.,  18  Fla.  187  149 

State  v.  Alderson,  10  Yerg.  (Tenn.)  523  49 


r  TABLE  OF  CASES. 

I'AOE 

State  v.  Aleck,  41  La.  Ann.  83  128 

State  v.  Alexander,  35  La.  Ann.  noo  81 

State,  Allen  v.,  77  111.  484  91 

State,  Allen  v.,  61  Miss.  627  165 

State,  Allen  v.,  5  Wis.  329  103 

State  v.  Allen,  R.  ML  Charlton's  Rep.  (Ga.)  518  155 

State  v.  Allen,  22  Mo.  318  136 

State  v.  Allen,  83  N.  C.  680  137 
State  if.  Ames,  96  N.  W.  330                                                             64,  73,  74 

State,  Anderson  v.,  5  Ark.  444  ,  134 

State,  App.  v.,  90  Ind.  73  89 

State  v.  Armstrong,  167  Mo.  257  49 

State,  Ashburn  v.,  15  Ga.  246              •  92,  138 

State,  Avirett  v.,  76  Md.  510  66 

State,  Aylesworth  v.,  65  111.  301  156 

State,  Ayrs  v.,  5  Cold.  (Tenn.)  26  137 

State  v.  Bacon,  77  Miss.  366  140 

State,  Baker  v.,  39  Ark.  180  93 

State,  Baker  v.,  23  Miss.  243  83 
State  v.  Baker,  20  Mo.  338                                                              .     119,  120 

State  v.,  Baker,  33  W.  Va.  319  128 

State,  Baldwin  v.,  126  Ind.  24  104 

State  v.  Baldwin,  15  Wash.  15  33 

State,  Bales  v.,  63  Ala.  30  57 

State  v.  Banks,  40  La.  Ann.  736  157 
State,  Barber  v.,  46  S.  W.  233                                                            64,  71,  87 

State,  Barger  v.,  6  Blackf.  (Ind.)  188  160 

State  v.  Barker,  107  N.  C.  913  147 

State,  Barkman  v.,  52  S.  W.  69  71 

State  v.  Barnes,  73  Tenn.  398  104 

State  v.  Barnett,  3  Kan.  250  33 
State,  Barney  v.,  12  Smedes  &  M.  (Miss.)  68               61,  62,  68,  85,  87,  147 

State  v.  Bates,  148  Ind.  610  140 

State  v.  Battle,  126  N.  C.  1036  54 

State,  Beal  v,,  15  Ind.  378  103 

State,  Beason  v.,  34  Miss.  602  60 

State,  Beavers  v.,  58  Ind.  530  156 

State  v.  Becky,  79  Iowa  368  66 

State  v.  Beebe,  17  Minn.  241  120 

State,  Bell  v.,  42  Ind.  335  88,  89 

State,  Bellair  v.,  6  Blackf.  (Ind)  104  64 

State  v.  Belvel,  89  Iowa  405  68 

State,  Bennett  v.,  62  Ark.  516  139,  140 

State,  Bennett  v.,  i  Martin  &  Yerg.  (Tenn.)  133  48 

State,  Bennett  v.,  8  Humph.  (Tenn.)  118  156 

State  v.  Bennett,  45  La.  Ann.  54  160 


TABLE  OF  CASES  Ivii 


State,  Benson  v.,  68  Ala.  513  5°.  57 

State,  Benson  v.,  68  Ala.  544  148 

State,  Berry  r.,  63  Ala.  126  5* 

State,  Betts  i/.,  66  Ga.  508  76,  80 
State  v.  Billings,  77  Iowa  417                                                           76,  78,  82 

State,  Billingslea  v.,  68  Ala.  486  65 

State,  Bird  v.,  14  Ga.  43  48 

State,  Bird  v.,  50  Ga.  585  137 

State,  Bird  r.,  103  Tenn.  343  150 

State,  Blackmore  v.,  8  S.  W.  940  90 

State,  Blaney  v.,  74  Md.  153  104 

State,  Blau  v.,  34  So.  153  31  •  127 

State  v.  Bleekley,  18  Mb.  428  77 

State,  Blevins  v.,  68  Ala.  92  51,  129 

State,  Blodget  v.,  3  Ind.  403  152 

State,  Bloomer  v.,  3  Sneed.  (Tenn.)  66  145 

State,  Blume  v.,  56  N.  E.  771  149 

State  v.  Bordeaux,  93  N.  C.  560  154 

State  v.  Borroum,  25  Miss.  203  87 

State  v.  Boswell,  104  Ind.  541  115 

State,  Boulo  v.,  51  Ala.  18  65 

State,  Bowen  v.,  24  So.  551  70 
State  v.  Bowman,  103  Ind.  69                                                                149,  151 

State  v.  Bowman,  73  Iowa  no  83 

State  v.  Bowman,  90  Me.  363  140 

State,  Box  v.,  34  Miss.  614  46 

State,  Boyd  v.,  98  Ala.  33  51 

State,  Boyd  v.,  46  Tenn.  i  48 

State  v.  Boyd,  2  Hill  (S.  C.)  288  146 

State,  Boyington  v.,  2  Port.  (Ala.)  100  85 

State  v.  Bradford,  57  N.  H.  188  48,  84 

State  v.  Bradley,  32  La.  Ann.  402  66 
State  v.  Brainerd,  56  Vt.  532                                                              45,  77,  147 

State  v.  Branch,  68  N.  C.  186  117 

State  v.  Brandon,  28  Ark.  410  86 

State  v.  Brandt,  41  Iowa  593  58,  90 

State  v.  Brewer,  8  Mo.  373  120 

State  v.  Brewster,  42  L.  R.  A.  444  139 
State  v.  Brooks,  9  Ala.  9                                                                52,  62,  72 

State  v.  Brooks,  48  La.  Ann.  1519  84 

State  v.  Broughton,  7  Ired.  (N.  C.)  96  119 

State,  Brown  v.,  10  Ark.  607  92 

State,  Brown  v.,  7  Humph.   (Tenn.)   155  156 

State,  Brown  v.,  32  Tex.  Cr.  Rep.  119  71 

State  v.  Brown,  10  Ark.  78  62 

Statj  v.  Brown,  10  Ark.  104  135 


Iviii  TABLE  OF  CASES. 

PAGB 

State  v.  Brown,  81  N.  C.  568  150,  152,  156 

State  -v.  Brown,  28  Ore.  147  74 

State  v.  Brown,  31  Vt.  602  149 

State,  Broyles  v.,  55  S.  W.  966  90 

State  v.  Bruce,  77  Mo.  193  134 

State,  Bryant  v.,  79  Ala.  282  142 

State  v.  Bryant,  10  Yerg.  (Tenn.)  527  62 

State,    Buchanan  v.  52  S.  W.  769  143 

State  v.  Buntin,  123  Ind.  124  149 

State,  Burrell  v.,  129  Ind.  290  84 

State  v.  Butler,  16  Tenn.  83  104 

State,  Byrd  v.,  \  How.  (Miss.)  247  91,  127 

State  v.  Cain,  i  Hawks.   (N.  C.)  352  132 

State,  Caldwell  v.,  5  Tex.  18  157 

State  v.  Calhoon,  i  Dev.  &  Bat.  (N.  C.)  374  148,  149 

State  v.  Cameron,  2  Chand.   (Wis.)   172  66 

State  v.  Cantrell,  21  Ark.  127  48 

State,  Carl  v.,  28  So.  505  143 

State  v.  Carlson,  62  Pac.  1016  81 

State  v.  Carney,  20  Iowa  82  57 

State,  Carpenter  v.,  62  Ark.  286  87 

State,  Carpenter  v.,  4  How.  (Miss.)   163  45 

State,  Carter  v.,  75  Ga.  747  73 

State,  Carter  v.,  46  S.  W.  236  64,  69 

State  v.  Carver,  49  Me.  588  87 

State  v.  Chairs,  68  Tenn.  196  78 

State  v.  Chambers,  87  Iowa  i  70 

State  v.  Champeau,  52  Vt.  313  67 

State  v.  Chandler,  2  Hawks.  (N.  C.)  439  149 

State,  Chappel  v.,  8  Yerg.  (Tenn.)  166  156 

State,  Chase  v.,  46  Miss.  683  68 

State,  Chase  v.,  20  N.  J.  Law  218  48,  49 

State,  Cheek  v.,  38  Ala.  227  152 

State,  Cherry  v.,  6  Fla.  679  150 

State,  Christmas  v.,  53  Ga.  81  152 

State,  Clair  v.,  40  Neb.  534;  28  L.  R.  A.  367  124,  126 

State  v.  Clapper,  59  Iowa  279  150 

State,  Clare  v.,  68  Ind.  17  156 
State,  Clare  v.,  30  Md.  163  66,  68,  87 
State  v.  Clarissa,  n  Ala.  57  76,  85,  87 

State  v.  Clark,  18  Mo.  432  157 

State  v.  Clayton,  11  Rich.  Law  (S.  C.)  581  45 

State,  Clem  v.,  33  Ind.  418  160 

State  v.  Clifton,  73  Mo.  430  68,  87 
State  v.  Clough,  49  Me.  573  49,  50,  139 

State,  Cobb  v.,  40  Neb.  545  124 


TABLE  OF  CASES.  Hx 

PAOK 

State,  Cody  v.,  3  How.   (Miss.)  27  135 

State  v.  Cole,  17  Wis.  674  64 

State  V.  Cole,  19  Wis.  129  80 

State  v.  Coleman,  8  S.  C.  237  134 

State,  Collins  v.,  13  Fla.  651  130 

State,  Collins  v.,  31  Fla.  574  75 

State  v.  Collins,  3  Dev.  (N.  C.)   117  149 

State  v.  Collins,  65  Tenn.  151  91,  148 

State  v.  Collis,  73  Iowa  542  153 

State  v.  Comer,  157  Ind.  611  133,  144 

State,  Compton  v.,  23  So.  750  65 

State  v.  Compton,  13  W.  Va.  852  157 

State  v.  Congdon,  14  R.  I.  267  60,  63 

State,  Conner  v.,  25  Ga.  515  48,  59 

State,  Conner  v.,  4  Yerg.  (Tenn.)   137  151 

State  v.  Conway,  35  La.  Ann.  350  58 

State  v.  Cooley,  75  N.  W.  729  46,  56 

State,  Cooper  v.,  79  Ind.  206  149,  151 
State  v.  Copp.,  34  Kan.  522                                                                45,  51,  147 

State,  Cotton  v.,  31  Miss.  504  84 

State,  Cotton  v.,  43  Tex.  169  143 

State,  Couch  v.,  63  Ala.  163  50,  57 

State,  Courtney  v.,  5  Ind.  App.  356  140 
State  v.  Cowan,   i   Head    (Tenn.)   280                                       148,   164,  165 

State  v.  Cox,  6  Ired.   (  N.  C.)  440  148 

State  v.  Creighton,  I  N.  &  Me.  C.  (S.  C.)  256  148 

State  v.  Crilly,  77  Pac.  701  156 

State,  Crocker  v.,  Meigs  (Tenn.)   127  116,  118 

State,  Cross  v.,  63  Ala.  40  51 

State,  Cross  v.,  78  Ala.  430  140 

State,  Cubine  v.,  73  S.  W.  396  63 

State,  Danforth  v.,  75  Ga.  614  156 
State  v.  Davidson,  2  Cold.   (Tenn.)    184                                    151,  155,  156 

State  v.  Davidson,  12  Vt.  300  151 

State,  Davis  v.,  46  Ala.  80  89 
State  v.  Davis,  41  Iowa  311                                                             65,  119,  120 

State  v.  Davis,  14  La.  Ann.  678  88 

State  v.  Davis,  22  Minn.  423  70 

State  v.  Davis,  126  N.  C.  1007  54 

State  v.  Davis,  12  R.  I.  492  63 

State  v.  Dayton,  23  N.  J.  Law  49  143 

State  v.  De  Hart,  109  La.  570  150 

State,  Deitz  v.,  123  Ind.  85  149 

State,  Denning  v.,  22  Ark.  131  84 

State  v.  Denton,  14  Ark.  343  135 

State,  Denton  v.,  155  Ind.  307  149 


Ix  TABLE  OF  CASES. 

PAGH 

State  v.  Derrick,  44  S.  C.  344  49 

State  v.  De  Serrant,  33  La.  Ann.  979  115 

State,  Deshazo  v.,  23  Tenn.  275  104 

State  v.  Dillard,  35  La.  Ann.  1049  88 

State  v.  District  Court,  55  Pac.  916  140 

State,  Dixon  v.,  29  Ark.  165  87 
State,  Dixon  v.,  3  Iowa  416                                                                C6,  68,  69 

State,  Dixon  v.,  20  80.839  64,  67 

State,  Doebler  v.,  31  Tenn.  473  104 

State  v.  Doherty,  60  Me.   504  89 

State,  Donald  v.,  31   Fla.  255  147 

State  v.  Donaldson,  43  Kan.  431  67 

State,  Dorman  v.,  56  Ind.  454  50 

State,  Doss  v.,  28  Tex.  App.  506  139 
State,  Dowling  v.,  5  Smedes  &  M.   (Miss.)  664                            50,  52,  60 

State,  Downs  v.,  78  Md.  128  68 

State,  Doyle  v.,  17  Ohio  222  56 

State,  Drake  v.,  25  Tex.  App.  293  84,  160 

State  v.  Drogmond,  55  Mo.  87  83 

State,  Duke  v.,  20  Ohio  St.  225  137 

State,  Dukes  v.,  14  Fla.  499  50 

State  v.  Duncan,  28  N.  C.  98  66 

State  v.  Duncan,  7  Yerg.  (Tenn.)  271  61,  87 

State  v.  Durham  Fertilizer  Co.,  in  N.  C.  658  63 

State,  Durr  v.,  53  Miss.  425  129 

State,  Durrah  v.,  44  Miss.  789  58,  86 

State  v.  Dusenberry,  112  Mo.  277  89 

State,  Dutell  v.,  4  G.  Greene  (Iowa)  125  58 

State,  Dye  v.,  130  Ind.  87  115 

State,  Dyer  v.,  79  Tenn.  509  87 

State  v.  Easter,  30  Ohio  St.  542  80 

State  v.  Easton,  113  Iowa  516  138 

State  v.  Edens,  85  N.  C.  522  62 
State  v.  Edgerton,  69  N.  W.  280                                                   73,  124,  126 

State,  Edmonds  v.,  34  Ark.  720  66 

State,  Edson  v.,  32  So.  308  65 

State  v.  Elkins,  Meigs   (Tenn.)   109  151 

State  v.  Elliott,  98  Mo.  150  151 

State,  Ellis  v.,  92  Tenn.  85  87 

State  v.  Elson,  45  Ohio  St.  648  74 

State,  Engelman  v.,  2  Cart.  (Ind.)  91  157 

State,  English  v.,  31  Fla.  340  147 

State  v.  English,  i  Murphy   (N.  C.)   435  136 

State  v.  Estes,  71  Tenn.  168  104 
State  v.  Fasset,  16  Conn.  457                                                 103,  118,  137,  143 

State  v.  Fee,  19  Wis.  562  46 


TABLE  OF  CASES.                                                      x 

MM 

State  v.  Fellows,  a  Hayw.  (N.  C.)  3*>                                               143,  MS 

State  v.  Felter,  25  Iowa  67  73 

State,  Penalty  v.,  12  Ark.  630  85,  87 

State  v.  Fertig,  98  Iowa  139  139 

State,  Fields  v.,  25  So.  726  150 

State,  Findley  v.,  61  Ala.  201  50,  56,  83 

State,  Finnegan  v.,  57  Ga,  427  89 

State,  Fisher  v.,  93  Ga.  309  77 

State,  Fitzgerald  v.,  4  Wis.  395  147 

State  v.  Fitzhugh,  2  Ore.  227  65 

State  v.  Fleming,  66  Me.  142  48 

State  v.  Flint,  52  La.  Ann.  62  66 

State  v.  Flores,  33  Tex.  444  148 

State  v.  Folke,  2  La.  Ann.  744  93,  149 

State,  Foster  v.,  31  Miss.  421  93 

State,    Fout  v.,  3  Hayw.  (Tenn.)  98  134 

State,  Fowler  v.,  100  Ala.  96  62 

State  v.  Fowler,  52  Iowa  103  51,  85,  142 

State  v.  Fox,  9  N.  J.  Law  244  91 

State,  Franklin  v.,  28  Ala.  9  157 

State,  Freel  v.,  21  Ark.  212  66,  161 

State  v.  Freeman,  13  N.  H.  488  149 

State,  Friar  v.,  3  How.  (Miss.)  422  91 

State  v.  Frizell,  in  N.  C.  722  146 

State  v.  Froiseth,  16  Minn.  313  51,  52,  124,  144,  145 

State  v.  Furco,  51  La.  Ann.  1082  70,  92,  124 

State,  Gabe  v.,  i  Eng.  (Ark.)  540  136 

State  v.  Gainus,  86  N.  C.  632  156 

State,  Gardner  v.,  4  Ind.  632  152 

State  v.  Gardner  88  Minn.  130  145 

Stale  v.  Garhart,  35  Iowa  315  50,  51 

State,  Garret  v.,  17  Tenn.  389  104 

State,  Gay  v.,  49  S.  W.  612  162 

State,  Geiger  v.,  25  Ohio  Cir.  Ct.  Rep.  742  149 

State,  Germolgez  v.,  99  Ala.  216  85 

State,  Gerrish  v.,  53  Ala.  476  152 

State  v.  Gibbs,  39  Iowa  318  64,  69,  119 

State,  Gibbs  v.,  45  N.  J.  Law  379  65 

State  v.  Gillick,  7  Iowa  287  76,  79 

State  r.  Gillick,  10  Iowa  98  68 

State,  Gilman  v.,  \  Humph.  (Tenn.)  59                                            137,  138 

State  v.  Gilmore,  9  W.  Va.  641  156 

State,  Gladden  v.,  12  Fla.  562  46,  160 

State  v.  Glascow,  59  Md.  209  86 

State,  Glenn  v.,  31  Tena  19  104 

State  v.  Glover,  3  G.  Greene  (Iowa)  249                                                 156 


Ixii  TABLE  OF  CASES. 

PAOE 

State  v.  Gonzales,  26  Tex.  197  127,  128,  134 

State  v.  Goss,  74  Mo.  592  136 

State  v.  Gouge,  80  Tenn.  132  91 

State  v.  Gowen,  7  Eng.  (Ark.)  62  157 

State  v.  Grady,  84  Mo.  220  120,  132 

State  v.  Graff,  97  Iowa  568  89 

State,  Grant  v.,  2  Tex.  App.  163  69 

State  v.  Granville,  34  La.  Ann.  1088  149 

State,  Green  v.,  28  Miss.  687  87 

State,  Green  v.,  4  Pickle  (Tenn.)  614  149 
State,  Green  v.,  i  Tex.  App.  82                                                          65,  66,  68 

State  v.  Green,  66  Mo.  6  31,  45 

State  -v.  Green,  in  Mo.  585  152 

State  v.  Griffice,  74  N.  C.  316  73 

State  v.  Griffin,  38  La.  Ann.  502  87 

State  v.  Grimes,  50  Minn.  123  161 

State  v.  Groome,  10  Iowa  308  149 

State,  Gross  v.,  2  Ind.  329  76 

State,  Groves  v.,  73  Ga.  205  130 

State  v.  Guillory,  44  La.  Ann.  317  64 

State,  Gunkle  v.,  6  Baxt.  (Tenn.)  625  150 

State  v.  Gurlagh,  76  Iowa  141  50 

State  v.  Gut,  13  Minn.  341  71 
State  Hall  v.,  32  So.  750                                                       119,  127,  128,  143 

State  v.  Hamilton,  13  Nev.  386  120 
State  v.  Hamlin,  47  Conn.  95                                           73,  74,  76,  85,  103,  119 

State,  Harding  v.,  22  Ark.  210  46 

State,  Harding  v.,  i  Tex.  App.  556  156 

State,  Harper  v.,  42  Ind.  405  160 

State,  Harrall  v.,  26  Ala.  53  134 

State,  Harrell  v .,  22  Tex.  App.  692  46 

State,  Harriman  v.,  2  G.  Greene  (Iowa)  270  135 

State  v.  Harris,  38  Iowa  242  73 

State  v.  Harris,  7  N.  J.  Law  361  91 

State  v.  Harris,  91  N.  C.  656  152 

State  v.  Harris,  97  N.  W.  1093  78 

State,  Harris  v.,  13  So.  15  51 

State  v.  Harrison,  19  Ark.  565  135 

State,  Harrison  v.,  44  Tenn.  195  104,  no 

State  v.  Hart,  29  Iowa  268  86 

State  v.  Hart,  67  Iowa  142  162 

State  v.  Hart,  15  Tex.  App.  202  66,  68 

State  v.  Hartley,  40  Pac.  372  147 

State  v.  Hawkins,  10  Ark.  71  56 

State  v.  Hawks,  56  Minn.  129  144 

State  v.  Haynes,  54  Iowa  109  60,  64 


TABLE  OF  CASES.  Ixiii 

PAOB 

State  f.  Haywood,  73  N.  C.  437  58 

State  r.  Haywood,  94  N.  C.  847  87 

State,  Heacock  v.,  42  Ind.  393  134,  156 

State,  Head  v.,  44  Miss.  731  64,  86 

State,  Heath  v.,  101   Ind.  512  156 

State  v.  Heaton,  56  Pac.  843  129 

State  v.  Heaton,  23  W.  Va.  773  156 

State  v.  Henderson,  29  W.  Va.  147  62 

State  v.  Hensley,  7  Blackf.   (Ind.)  324  64 
State  v.  Herndon,  5  Blackf.   (Ind.)  75                                       62,  66,  68,  73 

State,  Hess  v.,  73  Ind.  537  48 

State,  Hester  v.,  103  Ala.  83  52 

State  v.  Hill,  35  S.  E.  831  148,  149 

State  v.  Hinckley,  4  Minn.  345  71 

State  v.  Hinkle,  6  Iowa  380  69,  76,  78 

State,  Hinshaw  v.,  47  N.  E.  157  120 

State,  Kite  v.,  9  Yerg.   (Tenn.)   198  134 

State  v.  Hoffpauer,  21  La.  Ann.  609  68 

State  v.  Hogan,  31  Mo.  342  151 

State,  Hogan  v.,  30  Wis.  428  156 

State,  Holcomb  v.,  31  Ark.  427  156 

S.tate  v.  Holcombe,  86  Mo.  371  77 

State,  Hooker  v.,  56  Atl.  390  119 

State,  Horton  v.,  47  Ala.  58  87 

State  v.  Horton,  63  N.  C.  595  119,  147 

State  v.  Howard,  10  Iowa  101  66,  69 

State  v.  Hoyt,  13  Minn.  132  71 

State,  Hubbard  v.,  72  Ala.  164  136 

State,  Hudson  v.,  i  Blackf.   (Ind.>  317  70,  85 
State  v.  Hughes,  i  Ala.  655                                                            72,  82,  136 

State,  Hughes  v.,  54  Ind.  95  54 

State,  Huling  v.,  17  Ohio  St.  583  65,  68 

State  v.  Hurt,  7  Mo.  321  136 

State  v.  Ingalls,  17  Iowa  8  64 

State  v.  Ivey,  100  N.  C.  539  132 

State,  Jackson  v.,  102  Ala.  167  88 

State,  Jackson  v.,  64  Ga.  344  86 

State,  Jackson  v.,  76  Ga.  551  73 

State,  Jackson  v.,  4  Kan.  150  134 

State,  Jackson  v.,  \i  Tex.  261  62 

State,  Jackson  v.,  25  Tex.  App.  314  160 

State  v.  Jackson,  21  La.  Ann.  574  33 
State  v.  Jacobs,  6  Tex.  99                                                            50,  68,  84,  89 

State,  James  v.,  41  Ark.  451  157 

State  v.  Jeffcoat,  26  S.  C.  114  68 

State,  Jenkins  v.,  35  Fla.  737  50,  120 


Ixiv  TABLE  OF  CASES. 

PACK 

State,  Jenkins  v.,  30  Miss.  408  156 

State,  Jetton  v.,  ig  Tenn.  192  84,  137 

State,  Johnson  v.,  24  Fla.  162  156 

State,  Johnson  v.,  62  Ga.  179  87 

State,  Johnson  v.,  23  Ind.  32  149 

State,  Johnson  v.,  33  Miss.  363  58,  68 

State  v.  Johnson,  93  Mo.  73  152 

State  v.  Joiner,  19  Mo.  224  136 

State  v.  Jolly,  7  Iowa  15  157 

State,  Jones  v.,  18  Fla.  889  50 
State,  Jones  v.,  2  Blackf.   (Ind.)  475                                               76,  82,  85 

State,  Jones  v.,  n  Ind.  357  152 

State  v.  Jones,  8- Rob.  (La.)  616  61 

State  v.  Jones,  42  Pac.  392  156 

State,  Joyner  v.,  78  Ala.  448  134,  138 

State  v.  Justus,  n  Ore.  178  139 

State  v.  Keating,  85  Md.  188  51 

State,  Keech  v.,  15  Fla.  591  46,  50 

State,  Keithler  v.,  10  Smedes  &  M.    (Miss.)   192  134 
State,  Keitler  v.,  4  G.  Greene  (Iowa)  291                                    70,  71,  83,  84 

State,  Kemp  v.,  n  Tex.  App.  174  71 

State  v.  Keyes,  8  Vt.  57  33 

State  v.  Kilcrease,  6  S.  C.  444  137 

State,  Kilgore  v.,  74  Ala.  i  50 

State  v.  Kimball,  29  Iowa  267  140 
State,  King  v.,  5  How.  (Miss.)  730                                                136,  137,  138 

State  v.  King,  24  Pac.  265  44 

State,  Kirk  v.,  13  Srnedes  &  M.  (Miss.)  406  135 

State,  Kitrol  v.,  9  Fla.  9  72 

State,  Koch  v.,  32  Ohio  St.  353  78 

State  v.  Kouhns,   103  Iowa  720  68,  81 

State  v.  Kovolosky,  92  Iowa  498  128 

State  v.  Krause,  i  Ohio  N.  P.  91  58 

State  v.  Krider,  78  N.  C.  481  146 

State,  Lacey  v.,  31  Tex.  Cr.  Rep.  78  73,  85 

State  v.  Lamon,  10  N.  C  175  87 

State  v.  Lanier,  90  N.  C.  714  144 

State  v.  Larkin,  n  Nev.  314  85 

State,  Lascelles  v.,  90  Ga.  347  80 

State  v.  Lauer,  41  Neb.  226  49 

State,  Laurent  v.,  i  Kan.  313  154,  156 

State,  Lawless  v.,  4  Lea  (Tenn.)  173  155 

State,  Leathers  v.,  26  Miss.  73  46 

State,  Lee  v.,  69  Ga.  705  77,  80 

State,  Lee  v.,  45  Miss  114  85,  86 

State  v.  Lee,  87  Tenn.  114  104 


TABLE  OF  CASES.  IxV 

State,  Lennard  v.,  30  S.  E.  780  145 

State,  Levy  v.,  6  Ind.  281  152 

State  v.  Lewis,  38  La.  Ann.  680  120,  142 

State  v.  Lewis,  87  Tenn.  119  104 

State,  Lienberger  v.,  21  S.  W.  603  64 

State  v.  Lightbody,  38  Me.  200  48 

State  v.  Lightfoot,  78  N.  W.  41  150 

State  v.  Ligon,  7  Port.  (Ala.)   167  60 

State  v.  Liles,  77  N.  C.  496  62 

State,  Lindsay  v.,  24  Ohio  Cir.  Ct.  Rep.  I  144 

State,  Linehan  v.,  21  So.  497  65 

State  v.  Lockett,  3  Heisk.  (Tenn.)  274  134 

State,  Loeb  v.,  75  Ga.  258  72 

State,  Logan  v.,  50  Miss.  269  69 

State  v.  Logan,  104  La.  254  150 
State  v.  Logan,  i  Nev.  509                                                            119,  143,  146 

State,  Long  v.,  103  Ala.  55  67 

State,  Long  v.,  46  Ind.  582  160 

State,  Lott  v.,  18  Tex.  App.  627  46 

State  v.  Love,  4  Humph.  (Tenn.)  255  no,  132 

State,  Lucy  v.,  8  Mo.  134  136 

State  v.  McBroom,  127  N.  C.  528  150 

State  v.  McCann,  I  Meigs  (Tenn.)  91  135 

State,  McClary  v.,  75  Ind.  260  68,  86 

State  v.  MfcCourtney,  6  Mo.  649  136 

State,  McCuller  v.,  49  Ala.  39  156 

State,  McGregg  v.,  4  Blackf.  (Ind.)  101  134 

State,  McGuffie  v.,  17  Ga.  497  148,  149 

State  v.  McNamara,  3  Nev.  70  49,  58 

State  v.  McNeill,  93  N.  C.  552  60,  147 

State  v.  McNinch,  12  S.  C.  89  80,  128 

State  v.  MfcPherson,  87  N.  W.  421  120 

State,  McQuillen  v.,  8  Smedes  &  M.  (Miss.)  587  87 

State,  McTigue  v.,  63  Tenn.  313  73 

State,  McWaters  t/.,  10  Mo.  167  136 

State  v.  Mkddox,  i  Lea  (Tenn.)  671  81 

State  v.  Magrath,  44  N.  J.  Law  227  149 

State,  Maher  v.,  i  Port.   (Ala.)  265  48 

State,  Maher  v.,  3  Minn.  444  j\ 

State,  Maples  v.,  3  Heisk.  (  Tenn.)  408  156 

State  v.  Marshall,  74  N.  W.  763  143 

State,  Martin  v.,  30  Neb.  507  151 

State  v.  Martin,  2  Ired.  (N.  C.)  101  87 

State  v.  Martin,  82  N.  C.  672  58 

State  v.  Marsh,   13  Kan.  596  58 

State,  Mason  v.,  81  S.  W.  718  139 


TABLE  OF  CASES. 

PAOB 

State,  Matthews  v.,  58  S.  W.  86  162 

State  v.  May,  50  Ind.  170  89 

State,  Medaris  v.,  10  Yerg.  (Tenn.)  239  135 
State,  Meiers  v.,  56  Ind.  336                                                                86,  88,  89 

State  v.  Mellor,  13  R.  I.  666  68 
State,  Mershon  v.,  51   Ind.   14                                                          69,  85,  86 

State  v.  Newherter,  46  Iowa  88  120 

State  v.  Mickel,  65  Pac.  484  128 

State  v.  Millain,  3  Nev.  409  77 

State,  Millar  v.,  2  Kan.  174  156 

State,  Miller  v.,  69  Ind.  284  68,  87 

State,  Miller  v.,  33  Miss.  356  46 

State,  Miller  v.,  28  So.  208  128 

State  v.  Miller,  2  Blackf.  (Ind.)  35  73 

State  v.  Miller,  53  Iowa  84  51 

State  v.  Miller,  95  Iowa  368  139 

State,  Mails  v.,  76  Md.  274  84 

State  v.  Moles,  9  Mo.  694  136 

State,  Molett  v.,  33  Ala.  408  136 

State,  Montgomery  v.,  3  Kan.  263  50 

State  v.  Mooney,  10  Iowa  506  51 

State,  Moore  v.,  13  Smedes  &  ML  (Miss.)  259  135 

State,  Moore  v.,  Si  S.  W.  48  156 

State/  Morrison  v.,  41  Tex.  516  143 

State,  Mose  v.,  35  Ala.  421  156 

State,  Moses  v.,  58  Ala.  117  64 

State  v.  Motley,  7  S.  C.  327  62,  87 

State,  Mbyers  v.,  n  Humph.  (Tenn.)  40  135 

State,  Murphy  v.,  86  Ala.  45  65 

State  v.  Murphy,  47  Mo.  274  134 

State  v.  Muzingo,  Meigs  (Tenn.)   112  156 

State  v.  Newfane,  12  Vt.  422  78,  81 

State,  Newman  v.,  43  Tex.  525  161 

State,  Newman  v.,  14  Wis.  393  73 

State,  Newton  v.,  21  Fla.  53  50,  52 

State,  Nichols  v.,  46  Miss.  284  156 

State,  Nicholls  v.,  5  N.  J.  Law  539  48 

State,  Nixon  v.,  68  Ala.  535  49,  51 

State,  Noles  v.,  24  Ala.  672  33 

State  v.  Nordstrom,  7  Wash.  506  33 

State,  Norris  House  v.,  3  G.  Greene  (Iowa)  513  56 

State  v.  Noyes,  87  Wis.  340  88 

State,  Nunn  v.,  i  Kelly  (N.  C.)  243  132 
State,  O'Brien  v.,  91  Ala.  16                                                                  89,  152 

State,  O'Byrne  v.,  51  Ala.  25  83,  89 

State  v.  Offutt,  4  Blackf.   (Ind.)  355  118 


TABLE  OF  CASES. 

FAUB 

State,  Ogle  v.,  63  S.  W.  1009  46 

State,  Oliver  v.,  66  Ala.  8  5* 
State  v.  Osborne,  61  Iowa  330  65,  76,  79,  80 
State,  Ostrander  v.,  18  Iowa  435  45.  69,  88,  147 

State  v.  Overstreet,  128  Mo.  470  89,  103 

State,  Owens  v.,  25  Tex.  App.  552  72,  78 

State  v.  Oxford,  30  Tex.  428  120 

State,  Palmore  v.,  29  Ark.  248  62,  70 

State  v.  Parks,  21  La.  Ann.  251  61,  87 

State,  Farmer  v.,  41  Ala.  416  89 

State  v.  Parrish,  27  Tenn.  80  104,  150 

State  v.  Pate,  67  Mo.  488  160 

State,  Patrick  v.,  16  Neb.  330  69 

State,  Peeples  v.,  35  So.  223  156 

State,  Perkins  v.,  92  Ala.  66  88 

State,  Perkins  v.,  4  Ind.  222  119 

State  v.  Perry,  29  S.  E.  384  45,  46,  75 

State,  Peter  v.,  3  How.  (Miss.)  433  91,  135 

State,  Peters  v.,  98  Ala.  38  84 

State,  Peters  v.,  u  Tex.  762  48 

State  v.  Peterson,  61  Minn.  73  132,  155 

State  v.  Phillips,  2  Ala.  297  48 

State,  Phillips  v.,  68  Ala.  469  65 

State  v.  Pierce,  8  Iowa  231  50 

State  v.  Pierce,  90  Iowa  506  64 

State,  Pierce  v.,  12  Tex.  210  93 

State,  Pinson  v.,  23  Tex.  579  148 

State,  Pitner  v.,  23  Tex.  App.  366  33 

State,  Pittman  v.,  25  Fla.  648  157 

State,  Pointer  v.,  89  Ind.  255  68 

State,  Pond  v.,  47  Miss.  39  156 
State,  Portis  v.,  23  Miss.  578  50,  83,  84,  85 

State  v.  Powers,  59  S.  C.  200  49 

State,  Prescott  v.,  19  Ohio  184  33 

State,  Pybos  v.,  3  Humph.  (Tenn.)  49  45 

State  v.  Quimby,  51   Me.  395  72 

State,  Rampey  v.,  83  Ala.  31  49,  50 

State,  Ramsey  v.,  21  So.  209  85 

State  v.  Rand,  33  N.  H.  216  87 

State,  Rawls  v.,  8  Smedes  &  M.  (Miss.)  599  51 

State  v.  Reed,  67  Me.  127  134 
State,  Reed  v.,  i  Tex.  App.  i  65,  68,  69,  71 

State,  Reeves  v.,  84  Ind.  116  156 

State,  Reich  v.,  53  Ga.  73  64 

State  v.  Reid,  20  Iowa  413  69,  ida 

State  v.  Reinhart,  38  Pac.  822  152 


Ixviii  TABLE  OF  CASES. 

PAOB 

State  v.  Reisz,  48  La.  Ann.  1446  84 

State,  Reynolds  v.,  II  Tex.  120  134,  157 

State,  Rice  v.,  3  Kan.  141  44 

State  v.  Richard,  50  La.  Ann.  210  132 

State,  Richards  v.,  22  Neb.  145  115 

State  v.  Rickey,  9  N.  J.  Law  293  49 

State  v.  Rickey,  10  N.  J.  Law  83  64 

State,  Ridling  v.,  56  Ga.  601  91 

State,  Rippey  v.,  29  Tex.  App.  37  157 

State  v.  Roberts,  n  Mo.  510  136 

State  v.  Roberts,  2  Dev.  &  Bat.  (N.  C.)  540  138 

State,  Robeson  v.,  50  Tenn.  266  104 

State,  Robinson  v.,  33  Ark.  180  156 

State,  Robinson  v.,  24  Tex.  App.  4  148 

State  v.  Robinson,  2  Lea  (Tenn.)  114  143 

State,  Roby  v.,  74  Ga.  812  58 

State,  Rocco  v.,  37  Miss.  357  119 

State  v.  Rock,  57  Pac.  532  90 

State  v.  Rockafellow,  6  N.  J.  Law  332  62 

State,  Rodes  v.,  10  Lea  (Tenn.)  414  135 

State,  Roe  v.,  2  So.  459  93 

State  v.  Rogers,  37  Mo.  367  136 

State  v.  Rohfrischt,  12  La.  Ann.  382  150 

State,  Ross  v.,  i  Blackf.  (Ind.)  390  71,  85 

State  v.  Ross,  14  La.  Ann.  364  115 

State,  Roth  v.,  3  Ohio  Cir.  Ct  Rep.  59  73,  74 

State,  Rothschild  v.,  7  Tex.  App.  519  128,  139 

State,  Rowan  v.,  30  Wis.  129  33 

State  v.  Rowland,  36  La.  Ann.  193  61,  87 

State,  Runnels  v.,  28  Ark,  121  51 

State,  Russell  v.,  33  Ala.  366  71 

State,  Russell  v.,  10  Tex.  288  93 

State  v.  Russell,  90  Iowa  569  80 

State  v.  Ruthven,  58  Iowa  121  69 

State,  Rutzell  v.,  15  Ark.  67  103 

State  v.  Salge,  2  Nev.  321  134 

State,  Sanders  v.,  55  Ala.  183  87 

State  -v.  Sandoz,  37  La.  Ann.  376  156 

State  v.     Schieler,  37  Pac.  272  84 

State    v.  Scott,  25  Ark.  107  135 

State  v.  Seaborn,  15  N.  C.  305  86,  87 

State  v.    Sears,  86  Mo.  169  136 

State  v.  Sears,  61  N.  C.  146  68 

State  v.  Sharp,  no  N.  C.  604  80 

State,  Shattuck  v.,  n  Ind.  473  127,  128 
State  v.  Shelton,  64  Iowa  333                                                            76,  78,  147 


TABLE  OF  CASES.  Ixix 

MQH 

State  v.  Shippey,  10  Minn.  223                                          »  149 

State,  Shope  r.  32  S.  E.  140  80 

State,  Shropshire  v.,  12  Ark.  190  87 

State  v.  Shumpert,  i  S.  C.  85  33 

State  v.  Silvers,  82  Iowa  714  5° 

State,  Simms  v.,  60  Ga.  145  119 

State,  Simpson  v.,  34  S.  E.  204  80 

State,  Sims,  v.,  45  S.  W.  705  139 

State,  Skinner,  v.,  30  Ala.  524  152 

State  v.  Skinner,  34  Kan.  256  67 

State  v.  Smallwood,  68  Mo.  192  87 

State,  Smith  v.,  19  Conn.  493  122 

State,  Smith  v.,  90  Ga.  133  58 

State,  Smith  v.,  I  Humph.  (Tenn.)  396  130 

State,  Smith  v.,  i  Tex.  App.  133  68 
State,  Smith  v.,  ig  Tex.  App.  95                                                              84,  160 

State  f.  Smith,  88  Iowa  178  52 

State  v.  Smith,  67  Me.  328  49 
State  v.  Smith,  80  N.  C.  410                                                                      62,  63 

State  v.  Smith,  38  S.  C.  270  49 

State  v.  Smith,  19  Tenn.  99  104 

State  v.  Sopher,  35  La.  Ann.  975  149 

State,  Sparrenberger  v.,  53  Ala.  481  142 
State,  Spigener  v.,  62  Ala.  383                                                                 72,  119 

State,  Spratt  v.,  8  Mo.  247  150 

State  v.  Squire,  10  N.  H.  558  165 

State  v.  Staley,  71  Tenn.  565  104 

State  v.  Stanford,  20  Ark.  145  135 

St?te,  Stanley  v.,  88  Ala.  154  157 

State,  Stanley  v.,  16  Tex.  557  62 

State  v.  Stedman,  7  Port.  (Ala.)  495  149 

State,  Stevens  v.,  3  Ohio  St.  453  89 

State,  Stevenson  v.,  69  Ga.  68  58 

State,  Stewart  v.,  98  Ala.  70  49 

State,  Stewart  v.,  13  Ark.  720  87 
State,  Stewart  v.,  24  Ind.  142                                                          120,  124,  142 

State  v.  Stewart,  45  La.  Ann.  1164  100 

State,  Stokes  v.,  24  Miss.  621  88 

State,  Stoneking  v.,  24  So.  47  65 

State,  Stout  v.,  93  Ind.  150  89 

State  v.  Stowe,  132  Mo.  199  152 

State,  Strange  v.,  no  Ind.  354  151 
State,  Straughan  v .,  16  Ark.  37                                                                 46,  52 

State  v.  Stuart,  35  La.  Ann.  1015  *  92 

State,  Studstill  v.,  7  Ga.  2  149 

State  r.  Stunkle,  41  Kan.  456  72 


1XX  TABLE  OF  CASES. 

PAGE 

State  v.  Swift,  14  La.  Ann.  827  56 

State  v.  Swim,  60  Ark.  587  5<> 

State,  Sylvester  v.,  72  Ala.  201  54 

State  v.  Symonds,  36  Me.  128  Si 

State  v.  Taggart,  38  Me.  298  149 

State  v.  Tankersley,  6  Lea  (Tenn.)  582  135 

State  v.  Taylor,  43  La.  Ann.  1131  58 

State  v.  Taylor,  171  Mo.  465  71 

State,  Teas  v.,  7  Humph.  (Tenn.)  174  134 

State,  Terrell  v.,  9  Ga.  58  87 

State  v.  Terry,  30  Mo.  368  118 

State,  Terry  v.,  15  Tex.  App.  66  143 
State  v.  Texada,  19  La.  Ann.  436                                                     66,  68,  90 

State  v.  Thacker,  38  S.  E.  539  150 

State,  Thayer  v.,  138  Ala.  39  140 

State  v.  Thibodeaux,  48  La.  Ann.  600  63 

State,  Thomas  v.,  6  Mo.  457  134 

State  v.  Thomas,  19  Minn.  484  68 

State  v.  Thomas,  61  Ohio  St.  444  84,  85 

State,  Thomason  v.,  2  Tex.  App.  550  68 

State,  Tilly  v.,  21  Fla.  242  151 

State  v.  Tilly,  8  Baxt.  (Tenn.)  381  139 

State  v.  Tinney,  26  La.  Ann.  460  90 

State,  Towle  v.,  3  Fla.  202  136 

State  v.  T'rauger,  77  N.  W.  '336  144 

State,  Trevinio  v.,  27  Tex.  App.  372  84,  162 

State  v.  Tucker,  20  Iowa  508  145 

State,  Turk  v.,  7  Ham.  (Ohio)  part  2,  p.  240  146,  147 

State  v.  Turlington,  102  Mo.  642  124,  126 

State,  Turner,  v.,  78  Ga.  174  46,  49,  69 

State,  Ulmer  v.,  61  Ala.  208  57 

State,  Ulmer  v.,  14  Ind.  52  160 

State  v.  Underwood,  28  N.  C.  96  66 

State  v.  Valere,  39  La.  Ann.  1060  150 

State  v.  Van  Auken,  68  N.  W.  454  49 

State,  Van  Hook  v.,  12  Tex.  252  65,  68 

State  v.  Vincent,  I  Car.  Law  R.  493  134 

State  v.  Vincent,  36  La.  Ann.  770  115 

State  v.  Vincent,  91  Md.  718  86 

State  v.  Vincent,  91  Mo.  662  156 

State  v.  Vogel,  22  Wis.  471  87 

State  v.  Walcott,  21  Conn.  272  103 

State,  Wall  v.,  23  Ind.  150  156 

State,  Wallis  v.,  54  Ark.  611  46,  84,  85 

State,  Ward  v.,  22  Ala.  16  134 

State,  Ward  v.,  2  Mo.  120  103,  104 


TABLE  OF  CASES. 

PAUB 

State  v.  Ward,  60  Vt.  142  74,  84,  85,  86 

State  v.  Warner,  165  Mo.  399-4*3  65,  130 

State,  Warner  v.,  81  Tenn.  52  104 

State,  Washington  v.,  63  Ala.  189  142 

State  v.  Washington,  33  La.  Ann.  896  87 

State  v.  Washington,  28  Tenn.  626  87 

State,  Wassels  v.,  26  Ind.  30  149 

State,  Watkins  v.,  yj  Ark.  370  134 

State  v.  Watson,  31  La.  Ann.  379  68 

State  v.  Watson,  34  La.  Ann.  669  139 

State  v.  Watson,  104  N.  C.  735  46 

State,  Wattingham  v.,  5  Sneed  (Tenn.)  64  135 

State,  Watts  v.,  57  Atl.  542  155 

State,  Watts  v.,  22  Tex.  App.  572  84,  160 

State,  Webb  v.,  40  S.  W.  989  71 

State  v.  Webster,  30  Ark.  166  152 

State,  Welch  v.,  68  Miss.  341  101 

State  v.  Welch,  33  Mo.  33  64,  68 

State,  Wells  v.,  94  Ala.  I  66 

State,  Wells  i:,  21  Tex.  App.  594  46 

State  v.  Wells,  46  Iowa  662  33 

State,  Welsh  v.,  96  Ala.  92  49 

State,  West  v.,  6  Tex.  App.  485  92 

State,  Weston  v.,  63  Ala.  155  65 

State,  Wheatley  v.,  114  Ga.  175  133 

State  v.  Whipple,  57  Vt.  637  115 

State,  White  v.,  93  Ga.  47  148 

State  v.  White,  88  N.  C.  698  137 

State  v.  White,  17  Tex.  242  65,  68 

State,  Whiting  v.,  48  Ohio  St.  220  132,  149 

State  v.  Whitney,  7  Ore.  386  129 

State,  Whitney  v.,  59  S.  W.  895  67 

State,  Wilburn  v.,  21  Ark.  198  52 

State  v.  Wilburne,  2  Brevard  (S.  C)  296  148 
State  v.  Wilcox,  104  N.  C.  847                                                68,  76,  80,  81 

State,  Wilcox  v.,  34  S.  W.  958  152 

State  v.  Wilhite,  11  Humph.  (Tenn.)  602  148 
State  v.  Will,  97  Iowa  58                                                              119,  124,  127 

State,  Williams  v.,  61  Ala.  33  56 

State,  Williams  v.,  60  Ga.  88  86 

State,  Williams  v.,  69  Ga.  n  66,  77 

State,  Williams  v.,  9  Mo.  270  136 

State  v.  Williams,  5  Port.   (Ala.)    130  59 

State  v.  Williams,  107  La.  789  134 

State  v.  Williams,  35  S.  C.  344  62,  147 

State  v.  Williamson,  106  Mo.  162  77 


Ixxii  TABLE  OF  CASES. 

PAGB 

State  v.  Williamson,  4  Weekly  Law  Bulletin  (Ohio)  279  151 

State,  Willingham  v.,  21  Fla.  761  58 

State,  Wills  v.,  69  Ind.  286  62 

State  v.  Wilmoth,  63  Iowa  380  134 
State,  Wilson  v.,  i  Blackf.  (Ind.)  428  122,  123 
State,  Wilson  v.,  70  Miss.  595  101,  139 

State,  Wilson  v.,  51  S.  W.  916  129 

State  v.  Wilson,  85  Mo.  134  84 

State  v.  Wilson,  2  McCord  (S.  C.)  393  81 
State  v.  Wiltsey,  103  Iowa  54  88,  90 

State  v.  Wingate,  4  Ind.   193  160 

State,  Winten  v.,  90  Ala.  637  152 

State  v.  Wood,  84  N.  W.  503  139 

State,  Woodsides  v.,  2  How.  (Miss.)  655  91 

State,  Woodward  v.,  33  Fla.  508  86 

State,  Workman  v.,  36  Tenn.  425  88 

State,  Wright  v.,  42  Ark.  94  87 

State  v.  Wright,  53  Me.  328  72 

State,  Zimmerman  v.,  4  Ind.  App.  583  149 

Stedman,  State  v.,  7  Port.   (Ala.)  495  149 

Stegala,  Com  v.,  8  Ky.  Law  Rep.  142  157 

Stern,  People  v.,  68  N.  Y.  Sup.  732  142 

Stevens  v.  State,  3  Ohio  St.  453  89 

Stevenson  v.  State,  69  Ga.  68  58 

Stewart,  State  v.,  45  La.  Ann.  1164  100 

Stewart  v.  State,  98  Ala.  70  49 

Stewart  v.  State,  13  Ark.  720  87 
Stewart  v.  State,  24  Ind.  142  120,  124,  142 

Stokes  v.  State,  24  Miss.  621  88 

Stone,  Com.  v.,  105  Mass.  469  134 

Stone  v.  People,  2  Scam.  (111.)  '326  161 

Stoneking  v.  State,  24  So.  47  65 

Stout  v.  State,  93  Ind.  150  89 

Stowe,  State  v.,  132  Mo.  199  152 

Strange  v.  State,  no  Ind.  354  151 
Straughan  v.  State,  16  Ark.  37  46,  52 

Strong,  People  v.,  i  Abb.  Prac.  Rep.  N.  S.  (N.  Y.)  244  142 

Strother,  Com.  v.,  i  Va.  Cas.  186  78 

Stuart,  People  v.,  4  Calif.  218  143 

Stuart,  State  v.,  35  La.  Ann.  1015  92 

Studstill  v.  State,  7  Ga.  2  149 

Stunkle,  State  v.,  41  Kan.  456  72 

Summerhayes,  In  re,  70  Fed.  Rep.  769  165 

Superior  Court,  Bruner  v.,  92  Calif.  239  59 

Superior  Court,  Kalloch  v.,  56  Calif.  229  33 

Sutton,  Johnstone  v.,  i  Term.  Rep.  513-14  167 


TABLE  OF  CASES,  Ixxiii 

MM 

Swift,  State  v.,  14  La.  Ann.  827  5<5 

Swim,  State  v.,  60  Ark.  587  50 

Sylvester  v.  State,  72  Ala.  201  54 

Symonds,  State  v.,  36  Me.  128  51 

Taggart,  State  v.,  38  Me.  298  149 

Talton  v.  Mayes,  163  U.  S.  376  33 

Tankersley,  State  v.,  6  Lea  (Tenn.)  582  U5 

Taylor,  Com.  v.,  12  Pa.  C.  C.  326  114 

Taylor,  State  v.,  43  La.  Ann.  1131  58 

Taylor,  State  v.,  171  Mo.  465  7* 

Teas  v.  State,  7  Humph.  (Tenn.)   174  134 

Tenorio  v.  Territory,  I  N.  M.  279  135 

Terrell  v.  State,  9  Ga.  58  87 

Territory  v.  Armijo,  37  Pac.  1117  87 

Territory  v.  Barrett,  42  Pac.  66  87 

Territory  v.  Earth,  15  Pac.  673  83,  84 

Terrritory,  Chartz  v.,  32  Pac.  166  50 

Territory  v.  Clayton,  8  Mont.  I  64 

Territory  v.  Clayton,  19  Pac.  293  69 

Territory,  Cook  v.,  4  Pac.  887  65,  68 

Territory  v.  Corbett,  3  Mont.  50  103 

Territory  v.  Harding,  6  Mont.  323  64 

Territory,  Harland  v.,  13  Pac.  453  63 

Territory  v.  Hart,  7  Mont.  489  119 

Territory  v.  Hart,  14  Pac.  768  82,  85 

Territory  v.  Ingersoll,  3  Mont.  454  7* 

Territory,  Parker  v.,  52  Pac.  361  126 

Territory  v.  Pendry,  22  Pac.  760  143 

Territory  v.  Romero,  2  N.  Mex.  474  87 

Territory,  Rumsey  v.,  21  Pac.  152  63 

Territory  v.  Staples,  26  Pac.  166  139 

Territory,  Tenorio  v.,  I  N.  M.  279  135 

Territory,  Watt  v.,  l  Wash.  T.  409  50 

Territory,  Yelm  Jim  v.,  i  Wash.  T.  63  50,  88 

Territory  v .  Young,  2  N.  Mex.  93  65 

Terry,  State  v.,  30  Mo.  368  118 

Terry  v.  State,  15  Tex.  App.  66  143 
Terry,  United  States  v.,  39  Fed.  Rep.  355  103,  119,  128,  155 
Texada,  State  v.,  19  La.  Ann.  436  66,  68,  90 
Texas,  Carter  v.,  177  U.  S.  442  67,  68,  69,  86 

Thacker,  State  r.,  38  S.  E.  539  150 

Thayer  v.  People,  2  Doug.   (Mich.)  417  70 

Thayer  v.  State,  138  Ala.  39  140 

'ihe  Poulterer's  Case,  9  Co.  55  b.  117 

Thibodeaux,  State  v.,  48  La.  Ann.  600  63 

Thomas  v.  Com.,  2  Robinson,  (Va.)  795  118 


Ixxiv  TABLE  OF  CASES. 

PAGE 

Thomas,  State  v.,  19  Minn.  484  68 

Thomas,  State  v.,  61  Ohio  St.  444  84,  85 

Thomas  v.  State,  6  Mo.  457  134 

Thomason,  v.  State,  2  Tex.  App.  550  68 

Thompkins,  United  States  v.,  28  Fed.  Cas.  89  no,  131 

Thompson  v.  Com.,  20  Gratt.  (Va.)  724  150 

Thompson  v.  Com.,  88  Va.  45  135 

Thompson,  People  v.,  81  N.  W.  344  120 

Thornell  v.  People,  n  Colo.  305  156 

Thornton,  Ashford  v.,  i  B.  &  Aid.  405  13 

Thornton  v.  Marshall,  92  Ga.  548  167 

Thorpe  v.  People,  3  Utah  441  49 

Thurston,  People  v.,  5  Calif.  69  45 

Tillery,  In  re,  43  Kan.  188  90 

Tilly  v.  State,  21  Fla.  242  151 

Tilly,  State  v,,  8  Baxt.  (Tenn.)  381  139 

Tinder,  People  v.,  19  Calif.  539  105 

Tinney,  State  v.,  26  La.  Ann.  460  90 

Towle  v.  State,  3  Fla.  202  136 

Towles,  Com  v.,  5  Leigh  (Va.)  743  130 

Trauger,  People  v,,  77  N.  W.  336  144 

Trevinio  v.  State,  27  Tex.  App.  372  84,  162 

Tucker,  In  re,  8  Mass.  286  77 

Tucker,  State  v.,  20  Iowa  508  145 

Turk  v.  State,  7  Hammond  (Ohio)  part  2,  p.  240  146,  147 

Turlington,  State  v.,  102  Mo.  642  124,  126 

Turner  v.  State,  78  Ga.  174  46,  49,  69 

Turns  v.  Com.,  47  Mass.  224          .  89 

Turpen  v.  Booth,  56  Calif.  65  167 

Turpin,  Jones  v.,  6  Heisk.  (Tenn.)  181  119 

Twitchell',  Com.  v.,  \  Brews.  (Pa.)  551  120,  128 

Twitchell  v  .Com.,  7  Wall.  (U.  S.)  321  33 

Ullman  v.  Abrams,  72  Ky.  738  167 

Ulmer  v.  State,  61  Ala.  208  57 

Ulmer  v.  State,  14  Ind.  52                                          .  160 

Underwood,  State  v.,  28  N.  C.  96  66 

United  States,  Agnew  v.,  165  U.  S.  36  69,  85,  86 

United  States  v.  Ambrose,  3  Fed.  Rep.  283  55 

United  States  v.  Antz,  16  Fed.  Rep.  119  66 

United  States  v.  Ay  res,  46  Fed.  Rep.  651  56 

United  States  v.  Bates,  24  Fed.  Cas.  1042  153 

United  States  v.  Belvin,  46  Fed.  Rep.  381  77,  90 

United  States  v.  Benson,  31  Fed.  Rep.  896  78 

United  States  v.  Blodgett,  30  Fed.  Cas.  1157  69,  85,  103 

United  States  v.  Blodgett,  35  Ga.  336  68,  85 

United  States  v.  Brady,  3  Cr.  Law  Mag.  69  33 


TABLE  OF  CASES. 

PAGE 

United  States  r.  Brown,  24  Fed.  Cas.  1273  145,  146 
United  States  v.  Aaron  Burr,  25  Fed.  Cas.  55                 74,  76,  82,  125,  143 

United  States  v.  Butler,  25  Fed.  Cas.  213  69,  156 

United  States,  Caha.  v.,  152  U.  S.  211  154 

United  States  v.  Charles,  25  Fed.  Cas.  409  118 

United  States,  Clark  v.,  19  App.  D.  C.  295  90 

United  States  v.  Clark,  46  Fed  Rep.  633  74 

United  States,  Clawson  v.,  114  U.  S.  477  82 

United  States  v.  Clune,  62  Fed.  Rep.  798  63,  74,  76 

United  States  v.  Cobban,  127  Fed.  Rep.  713  127,  128,  142 

United  States  v.  Coolidge,  25  Fed.  Cas.  622  138,  146 

United  States,  Crowley  v.,  194  U.  S.  461  73,  74 

United  States  v.  Dulany,  25  Fed.  Cas.  23  135 

United  States  v.  Eagan,  30  Fed.  Rep.  608  56,  77,  86 

United  States  v.  Edgerton,  80  Fed.  Rep.  374  128,  139,  145 

United  States  v.  Elliott,  25  Fed.  Cas.  1003  148 

United  States  v.  Farrington,  5  Fed.  Rep.  343  119,  120,  155 

United  States,  Fisher  v.,  31  Pac.  195  86 

United  States,  Frisbie  v.,  157  U.  S.  160  148,  151 

United  States  v.  Fuers,  25  Fed.  Cas.  1223  no 

United  States  v.  Gale,  109  U.  S.  65  63,  65,  69,  86 

United  States  v.  Greene,  113  Fed.  Rep.  683  55,  67 
United  States  v.  Hammond,  26  Fed.  Cas.  99                     61,  63,  69,  73,  87 

United  States,  Harless  v.,  i  Morris  (Iowa)  169  81 

United  States  v.  Helriggle,  26  Fed  Cas.  258  135 

United  States  v.  Hill,  26  Fed.  Cas.  315  131 

United  States  v.  Hollinsberry,  26  Fed.  Cas.  345  135 

United  States  v.  Hunter,  15  Fed.  Rep.  712  133,  143 

United  States  v.  Jamesson,  26  Fed.  Cas.  585  135 
United  States  v.  Jones,  31  Fed.  Rep.  725                              69,  73,  76,  80,  86 

United  States  v.  Jones,  69  Fed.  Rep.  973  83,  143 

United  States  v.  Kilpatrick,  16  Fed.  Rep.  765  120,  142,  165 

United  States  v.  Lawrence,  26  Fed.  Cas.  886  103 

United  States  v.  Laws,  26  Fed  Cas.  892  151 

United  States  v.  Levally,  36  Fed.  Rep.  687  148,  151 

United  States  v.  Lloyd,  26  Fed.  Cas.  986  135 

United  States  v.  McAvoy,  26  Fed.   Cas.   1044  127,  134 

United  States  v.  McMahon,  26  Fed.  Cas.  1131  64 

United  States,  Mackin  v.     117  U.  S.  328  33 

United  States  v.  Madden,  26  Fed  Cas.  1138  131 

United  States  v.  Martin,  50  Fed.  Rep.  918  153 

United  States  v.  Mundell,  27  Fed.  Cas.  23  '    135 

United  States  v.  Nagle,  27  Fed.  Cas.  68  134 

United  States  v.  Palmer,  27  Fed.  Cas.  410  69,  78,  103 

United  States  v.  Plumer,  27  Fed.  Cas.  561  148 

United  States  v.  Porter,  27  Fed.  Cas.  595  119 


TABLE  OF  CASES. 

PAOB 

United  States  v.  Reed,  27  Fed.  Cas.  727  48,  55,  66,  74,  119,  123,  142 

United  States  v.  Reeves,  27  Fed.  Cas.  750  63,  69,  74,  86,  122 

United  States,  Reynolds  v.,  98  U.  S.  145  45 

United  States  v.  Reynolds,  i  Utah  226  76 

United  States  v.  Richardson,  28  Fed.  Rep.  61  55,  69,  86 

United  States  v.  Riley,  74  Fed.  Rep.  210  152 

United  States  v.  Rondeau,  16  Fed.  Rep.  109  55,  69 

United  States  v.  Sandford,  27  Fed.  Cas.  952  135 

United  States  v.  Shackelford,  27  Fed.  Cas.   1037  135 

United  States  v.  Shepard,  27  Fed.  Cas.  1056  113,  115,  135 

United  States  v.  Simons,  46  Fed.  Rep.  65  139,  150 

United  States  v.  Smith,  27  Fed.  Cas.  1186  145 

United  States  v.  Smith,  40  Fed.  Rep.  755  115 

United  States,  Stanley  v.,  33  Pac.  1025  65 
United  States  v.  Terry,  39  Fed.  Rep.  355                            103,  119,  128,  155 

United  States  v.  Tompkins,  28  Fed.  Cas.  89  no,  131 

United  States  v.  Upham,  43  Fed.  Rep.  68  152 

United  States  v.  Watkins,  28  Fed.  Cas.  419  126 

United  States  v.  White,  28  Fed.  Cas.  572  73,  76 

United  States  v.  White,  28  Fed.  Cas.  588  103,  141 

United  States  v.  Williams,  28  Fed.   Cas.  666  73,  77 

United  States  v.  Wilson,  28  Fed.  Cas.  725  88 

United  States,  Wolfson  v.,  101  Fed.  Rep.  430  69,  86 

Upham,  United  States  v.,  43  Fed.  Rep.  68  152 

Usner,  Com.  v.,  7  Lane.  (Pa.)  57  151 

Valere,  State  v.,  39  La.  Ann.  1060  150 

Valsalka,  Cora,  v.,  181  Pa.  17  66,  67 

Van  Auken,  State  v.,  68  N.  W.  454  49 

Van  Hook  v.  State,  12  Tex.  252  65,  68 

Vincent,  State  v.,  i  Car.  Law  R.  493  134 

Vincent,  State  v.,  36  La,  Ann.  770  115 

Vincent,  State  -v.,  91  Md.  718  86 

Vincent,  State  v.,  91  Mo.  662  156 

Virginia  v.  Gordon,  28  Fed.  Cas.  1224  119 

Vogel,  State  v.,  22  Wis.  471  87 

Wadley  v.  Com.,  35  S.  E.  452  143 

Wadlin,  In  re,  n  Mass.  142  51 

Walcott,  State  v.,  21  Conn.  272  103 

Walker  v.  People,  22  Colo.  415  115 

Wall  v.  State,  23  Ind.  150  156 

Wallis  -v.  State,  54  Ark.  6n  46,  84,  85 

Walters,  Com.  v.,  6  Dana  (Ky.)  290  148,  150 

Ward  v.  State,  22  Ala.  16  134 

Ward  v.  State,  2  Mo.  120  103,  104 
Ward,  State  v.,  60  Vt.  142                                                               74,  84,  85,  86 

Warner,  State  v.,  165  Mo.  399-413  65,  130 


TABLE  OF  CASES. 

PAOB 

Warner  r.  State,  81  Tenn.  52  104 

Warren,  People  v.,  109  N.  Y.  615  112,  153 

Warrington,  Granger  v.,  8  III.  299  120 

Washington  v.  State,  63  Ala.  189  142 

Washington,  State  v.,  33  La.  Ann.  896  87 

Washington,  State  v.,  28  Tenn.  626  87 

Wassels  v.  State,  26  Ind.  30  149 

Watkins  v.  State,  37  Ark.  370  134 

Watkins,  United  States  v.,  28  Fed.  Cas.  419  126 

Watson,  Bennett  v.,  3  M.  &  S.  i  133 

Watson  v.  Hall,  46  Conn.  204  12 

Watson,  State  v.,  31  La.  Ann.  379  68 

Watson,  State  v.,  34  La.  Ann.  669  139 

Watson,  State  v.,  104  N.  C.  735  46 

Wattingham  v.  State,  5  Sneed  (Tenn.)  64                                                     135 

Watt  v.  Territory,  4  Wash.  T.  409  50 

Watts  v.  State,  57  Atl.  542  155 

Watts  v.  State,  22  Tex.  App.  572  84,  160 

Webb  v.  State,  40  S.  W.  989  71 

Webster's  Case,  5  Greenl.  (Me.)  432  150 

Webster,  State  v.,  30  Ark.  166  152 

Welch  v.  State,  68  Miss.  341  101 

Welch,  State  v.,  33  Mo.  33  64,  68 

Wells  v.  Com.,  15  Ky.  Law  Rep.  179  147 

Wells  v.  State,  94  Ala.  i  66 

Wells,  State  v.,  46  Iowa  662  33 

Wells  v.  State,  21  Tex.  App.  594  46 

Welsh  v.  State,  96  Ala.  92  49 

West  v.  State,  6  Tex.  App.  485  92 

Weston  v.  State,  63  Ala.  155  65 

Wetherold,  Com.  v.,  2  Clark  (Pa.)  476  ill 

Wheatley  v.  State,  114  Ga.  175  133 

Whipple,  State  v.,  57  Vt  637  115 

Whitaker,  Com.  v.,  25  Pa.  C.  C.  Rep.  42  no 

White  v.  Com.,  29  Gratt.  (Va.)  846  149 

White,  People  v.,  81  111.  333  160 

White  v.  State,  93  Ga.  47  148 

White,  State  v.,  88  N.  C.  698  137 

White,  State  v.,  17  Tex.  App.  242  65,  68 

White,  United  States  v.,  28  Fed.  Cas.  572                                             73,  76 

White,  United  States  v.,  28  Fed.  Cas.  588  103,  141 

Whitehead  r.  Com.,  19  Gratt.   (Va.)  640                                                   66 

Whiting  v.  State,  48  Ohio  St.  220  132,  149 

Whitney,  State  v.,  7  Ore.  386  129 

Whitney  v.  State,  59  S.  W.  895  67 

Wilburn  v.  State,  21  Ark.  198  52 


Ixxviii  TABLE  OF  CASES. 

PAOB 

Wilburne,  State  v.,  2  Brevard  (S.  C)  296  148 
Wilcox,  State  v.,  104  N.  C.  847                                                     68,  76,  80,  81 

Wilcox  v.  State,  34  S.  W.  958  152 

Wildman,  Ex  Parte,  29  Fed.  Cas.  1232  33 

Wilhite,  State  v.,  n  Humph.  (Tenn.)  602  148 
Will,  State  v.,  97  Iowa  58                                                              119,  124,  127 

Williams,  State  v.,  5  Port.  (Ala.)  130  59 

Williams,  State  v.,  107  La.  789  134 

Williams,  State  v.,  35  S.  C.  344  62,  147 

Williams  v.  State,  61  Ala.  33  56 

Williams  v.  State,  60  Ga.  88  86 

Williams  v.  State,  69  Ga.  n  66,  77 

Williams  v.  State,  9  Mb.  270  136 

Williams,  United  States  v.,  28  Fed.  Cas.  666  73,  77 

Williamson,  State  v.,  106  Mo.  162  77 

Williamson,  State  v.,  4  Weekly  Law  Bulletin  (Ohio)  279  151 

Willingham  v.  State,  21  Fla.  761  58 

Willis,  People  v.,  52  N.  Y.  Sup.  808  144 

Wills  v.  State,  69  Ind.  286  62 

Wilmoth,  State  v.,  63  Iowa  380  134 

Wilson,  Com.  v.,  2  Chester  Co.  Rep.  (Pa.)  164  no 

Wilson,  Com.  v.,  9  Pa.  C  C.Rep.  24  138 

Wilson,  Ex  Parte,  114  U.  S.  417  33,  115 
Wilson,  In  re,  140  U.  S.  575                                                               46,  47,  56 

Wilson,  Levy  v.,  69  Calif.  105  50,  58 

Wilson  v.  People,  3  Colo.  325  60,  68 

Wilson,  State  v.,  85  Mo.  134  84 

Wilson,  State  v.,  2  McCord  (S.  C.)  393  8r 

Wilson  v.  State,  i  Blackf.   (Ind.)  428  122,  123 

Wilson  v.  State,  70  Miss.  595  101,  139 

Wilson  v.  State,  51  S.W.  916  129 

Wilson,  United  States  v.,  28  Fed.  Cas.  725  88 

Wiltsey,  State  v.,  103  Iowa  54  88,  90 

Winant,  People  v.,  53  N.  Y.  Sup.  695  146 

Windham,  King  v.,  2  Keble  180  164 

Wingate,  State  v.,  4  Ind.   193  160 

Winter  v.  Muscogee  Railroad  Co.,  n  Ga,  438  50,  51 

Wintermute,  People  v.,  46  S.  W.  694  65 

Winten  v.  State,  90  Ala.  637  152 

Wolfson  v.  United  States,  101  Fed.  Rep.  430  69,  86 

Wood,  Com.  v.,  2  Cush.   (Miss.)   149  46 

Wood,  Jackson  v.,  2  Cow.  (N.  Y.)  819  33 

Wood,  State  v.,  84  N.  W.  503  139 

Woods,  Com.  v.,  10  Gray  (Mass.)  477  132,  155 

Woodsides  v.  State,  2  How.   (Miss.)  655  91 

Woodward  v.  State,  33  Fla.  508  86 


TABLE  OF  CASES  Ixxix 

PAOB 

Woodward,  Com.  v.,  157  Mass.  516  76 

Workman  v.  State,  36  Tenn.  425  88 

Wortham  v.  Com.,  5  Randolph  (Va.)  669  135 

Wray,  Res  v.,  3  Dall.  (Pa.)  490  34 

Wright,  Com.  v.,  79  Ky.  22  67 

Wright  v.  State,  42  Ark.  94  87 

Wright,  State  v.,  53  Me.  328  72 

Yates  v.  People,  38  111.  527  91,  151 

Yelm  Jim  v.  Territory,  I  Wash.  T.  63  50,  88 

Yost  v.  Com.,  5  Ky.  Law  Rep.  935  152 

Young,  People  v.,  31  Calif.  563  118,  121 

Young,  Territory  v.,  2  N.  Mlex.  93  65 

Ziegler  v.  Com.,  22  W.  N.  C.  (Pa.)  m  120 

Zillafrow,  Com.  v.,  207  Pa.  274  53,  58 

Zimmerman  v.  State,  4  Ind.  App.  583  149 


THE    GRAND    JURY 
PART  I 

ITS  ORIGIN,  HISTORY  AND  DEVELOPMENT. 

The  grand  jury  is  an  institution  of  English-speaking  coun- 
tries, of  historic  interest  by  reason  of  the  obscurity  surround- 
ing its  origin,  its  gradual  development,  and  the  part  it  has 
played  in  some  of  the  most  stirring  events  in  the  history  of  the 
Anglo-Saxon  race;  of  political  interest  by  its  effectual  protec- 
tion of  the  liberty  of  the  subject  from  the  arbitrary  power  of 
the  government;  of  legal  interest  in  that  its  power  and  action 
is  utterly  repugnant  to  "the  experience  and  theory  of  English 
law."1  It  has  been  extravagantly  praised  as  the  "security  of 
Englishmen's  lives,"2  the  conserver  of  his  liberties,3  and  the 
noblest  check  upon  the  malice  and  oppression  of  individuals 
and  states;4  it  has  been  bitterly  assailed  as  "purely  mischiev- 
ous"6 and  a  "relic  of  barbarism."6 

The  origin  of  the  grand  jury  has  given  rise  to  protracted  dis- 
cussion on  the  part  of  learned  writers  and  has  been  productive 
of  widely  differing  conclusions.  Some  have  claimed  to  find 
traces  of  the  institution  among  the  Athenians,7  but  if  such  an 
institution  ever  existed  in  Athens  it  had  become  extinct  before 

1  An  Essay  on  the  Law  of  Grand  Juries,   (E.  Ingersoll,  Philadelphia, 
1849). 

2  The  Security  of  Englishmen's   Lives,  etc.,    (Lord  Somers,  London, 
1694). 

3  4  Bl.  Com.  349;  Judge  King,  in  Case  of  Lloyd  and  Carpenter,  3  Clark 
(Pa.)  188. 

4  Addison,  App.  18. 

5  Bentham — Rationale  of  Judicial  Evidence,  Vol.  II,  p.  312. 

6  Grand  Juries,  29  L.  T.  21. 

7  Jas.  Wilson's  Works,  Vol.  II.  p.  361. 

I 


2  THE  GRAND  JURY. 

the  existence  of  Britain  became  known  to  the  Mediterranean 
Countries.  And  although  Athenian  history  makes  mention  of 
customs  similar  to  the  Norman  appeal  with  the  wager  of  bat- 
tle and  also  of  a  trial  by  a  large  number  of  jurors,  it  is  silent 
concerning  a  body  whose  duty  was  to  accuse. 

Other  writers  claim  for  the  institution  an  Anglo-Saxon 
origin,8  and  in  confirmation  of  their  opinion  point  to  the  law  of 
Ethelred  IP  (A.  D.  978-1016),  while  still  others  urge  that 
juries  were  unknown  to  the  Anglo-Saxons  and  were  introduced 
into  England  by  the  Normans  after  the  conquest.10 

Strictly  speaking  there  is  no  obscurity  surrounding  the  origin 
of  the  "grand  jury,"  for  it  was  not  until  the  42nd  year  of  the 
reign  of  Edward  III  (A.  D.  1368)  that  the  modern  practice  of 
returning  a  panel  of  twenty- four  men  to  inquire  for  the  county 
was  established  and  this  body  then  received  the  name  "le 
graunde  inquest."11  Prior  to  this  time  the  accusing  body  was 
known  only  as  an  inquest  or  jury,  and  was  summoned  in  each 
hundred  by  the  bailiffs  to  present  offences  occurring  in  that 
hundred.  When,  therefore,  this  method  of  proceeding  was  en- 
larged by  the  sheriff  returning  a  panel  of  twenty-four  knights 
to  inquire  of  and  present  offences  for  the  county  at  large,  we 
see  the  inception  of  the  grand  jury  of  the  present  day.  But 
while  it  is  true  that  our  grand  jury  was  first  known  to  England 
in  the  time  of  Edward  the  Third,  it  is  nevertheless  not  true  that 
it  was  an  institution  of  Norman  origin  or  transplanted  into 
England  by  the  Normans. 

That  the  petit  jury  was  a  Norman  institution  and  by  them 
brought  into  England  cannot  well  be  doubted.  Mr.  Reeves12 

8  Crabb's  Hist.  Eng.  Law,  35 ;  Spence — Equitable  Jurisdiction  of  the 
Court  of  Chancery,  Vol.  I,  p.  63 ;  Grand  Juries  and  the  Pleas  of  Criminals, 
(John  Lascelles)  Law  Mag.  &  Rev.  Vol.  4  (N.  S.)  767;  Grand  Jury  in  Ire- 
land, etc.  (Wm.  G.  Huband)  5. 

9  Wilkins  Leges  Anglo  Saxonicae  117;  Note  to  Grand  Juries  and  the 
Pleas  of  Criminals   (John  Lascelles)   Law  Mag.  &  Rev.  Vol.  4  (N.  S.) 
767. 

10  i  Reeves  Hist.  Eng.  Law  23. 

11  3  Reeves  Hist.  Eng.  Law  133;  Growth  of  the  Grand  Jury  System 
(J.  Kinghorn)  6  Law  Mag.  &  Rev.  (4th  S.)  367. 

12  Hist  Eng.  Law,  Vol.  I,  p.  84. 


ITS  ORIGIN,   HISTORY  AND  DEVELOPMENT.  3 

shows  that  the  trial  by  twelve  jurors  was  anciently  in  use 
among  the  Scandinavians,  and  became  disused,  but  "was  re- 
vived, and  more  firmly  established  by  a  law  of  Reignerus,  sur- 
named  Lodbrog,  about  the  year  A.  D.  820.  It  was  about 
seventy  years  after  this  law,  that  Rollo  led  his  people  into  Nor- 
mandy, and,  among  other  customs,  carried  with  him  this 
method  of  trial;  it  was  used  there  in  all  causes  that  were  of 
small  importance."  At  the  time  the  Normans  were  using  the 
Scandinavian  nambda,  the  Anglo-Saxons  were  proceeding  with 
sectatores,  that  is  suitors  of  the  court,  to  whom  were  referred 
all  questions  of  law  and  of  fact.  The  number  of  sectatores  was 
indeterminate13  and  we  have  no  record  that  unanimity  was  re- 
quired in  their  verdict.  While,  therefore,  we  see  that  in  Nor- 
mandy, the  nambda,  and  in  England,  the  sectatores,  were  per- 
forming similar  functions  in  determining  questions  of  fact,  we 
further  find  their  jurisdiction  extending  only  to  civil  causes. 

The  ancient  modes  of  bringing  offenders  to  justice  in  Nor- 
mandy and  in  England  were  as  radically  different  as  they  are 
to-day. 

The  Norman  method  was  by  appeal,  (from  the  French 
appeler,  to  call)14  the  direct  individual  accusation,  the  truth  of 
which  was  determined  by  the  wager  of  battle.  The  nambda 
took  no  cognisance  of  criminal  pleas,  and  crimes,  where  no 
appellor  appeared,  went  unpunished.  The  English  method  was 
designed  to  prevent  the  escape  of  any  who  had  violated  the 
law.  This  was  sought  to  be  accomplished  first,  by  prevention 
through  the  system  of  frank  pledge,  by  which  in  every  tithing 
the  inhabitants  were  sureties  to  the  king  for  the  good  behavior 
of  each  other;15  and,  second,  by  prosecution  instituted  by  the 
presentment  of  the  twelve  senior  thanes  in  every  hundred  or 
wapentake,  whose  duty  was,  according  to  the  law  of  Ethelred, 
to  accuse  such  persons  as  they  found  had  committed  any 

13  i  Reeves  Hist  Eng.  Law  22. 

14  Bouvier's  Law  Dictionary  (Rawle's  Revision). 

15  i    Bl.    Com.    114;    Bouvier's    Law    Dictionary    (Rawle's    Revision)  ; 
Growth  of  the  Grand  Jury  System   (J.   Kinghorn)  6  Law  Mag.  &  Rev. 
(4th  S.)   367- 


4  THE  GRAND  JURY. 

crime.1"  There  was  also  the  hue  and  cry,  which  was  raised 
when  any  offence  was  discovered  and  the  offender  was  pursued 
until  taken;  if  he  escaped,  then  the  hundred  in  which  he  was  in 
frank-pledge  was  liable  to  be  amerced.17  Inasmuch  as  in  this 
period  all  offences  were  regarded  as  of  purely  private  concern, 
the  offender  could  escape  trial  and  punishment  upon  payment  to 
the  person  wronged,  or,  if  he  was  dead,  to  his  next  of  kin,  of 
a  sum  of  money,  varying  in  accordance  with  the  enormity  of 
the  offence,  and  the  rank  of  the  person  injured.  This  was 
known  as  the  custom  of  weregild.18  If,  however,  the  defend- 
ant either  could  not  or  would  not  pay  weregild,  then  the  truth 
of  the  charges  prosecuted  by  these  methods  was  determined  by 
compurgation,  by  the  corsned  or  morsel  of  execration,  or  by  the 
ordeal  of  fire  or  water.19  Where  the  accused  failed  to  clear 
himself  by  compurgation,  which  occurred  when  he  failed  to  ob- 
tain the  necessary  number  of  persons  who  were  willing  tc  swear 
their  belief  in  his  innocence,  he  was  obliged  to  purge  himself 
by  the  ordeal.20 

It  will  therefore  be  seen  that  the  grand  jury  was  not  a  Nor- 
man institution  brought  into  England  by  the  conquest,  for  an 
accusing  body  was  wholly  unknown  among  the  Normans ;  and 
while  the  Normans  did  introduce  the  nambda  into  England, 
where  its  similarity  to  the  sectatores  caused  it  to  firmly  impress 
itself  into  the  English  customs,21  in  the  land  which  sent  it  forth 
to  England  it  gradually  sank  into  disuse.22 

The  English  system  of  frank-pledge,  with  the  holding  of  the 
sheriff's  tourn  semi-annually  in  the  county,  and  the  court-leet 

16  Wilkins  Leges  Anglo  Saxonicae  117;  The  Grand  Jury,  etc.,  in  Ire- 
land (Win.  G.  Huband)  II ;  Spence — Equitable  Jurisdiction  of  the  Court  of 
Chancery,  Vol.  I,  p.  63 ;  Crabb  Hist.  Eng.  Law  35. 

17  4  Bl.  Com.  294. 

18  For  the  amount  to  be  paid  as  weregild,  see  Stubbs  Select  Charters,  65 ; 
Reeves  Hist.  Eng.  Law  14  et.  seq. 

19  4  Bl.  Com.  414;  i  Reeves  Hist.  Eng.  Law  15,  20,  21. 

20  Forsyth  Trial  by  Jury  159. 

21  An  Essay  on  the  Law  of  Grand  Juries   (E.  Ingersoll,  Philadelphia, 
1849)  ;  Origin  of  Grand  Juries  (Hon.  E.  Anthony),  i  Chic.  L.  News,  20. 

22  The  Jury  and  Its  Development,  (Prof.  J.  B.  Thayer),  5  Harv.  L.  Rev. 
351- 


ITS  ORIGIN,   HISTORY  AND  DEVELOPMENT.  5 

or  view  of  frank-pledge,  annually  in  the  hundred,  when  offend- 
ers appear  to  have  been  punished,23  were  supplemented  in  their 
purpose  of  preventing  crime  and  bringing  offenders  to  justice 
by  the  accusing  body  of  twelve  thanes  of  each  hundred  as  or- 
dained by  the  law  of  Ethelred.24  Whether  this  law  created 
the  accusing  body  or  was  merely  declaratory  of  a  custom  then 
in  use  in  parts  of  the  kingdom  with  the  intent  to  make  it  of  uni- 
versal application,  is  a  matter  of  much  doubt.  It  is  more  prob- 
able, however,  that  the  statute  of  Ethelred  was  declaratory  of 
the  law  then  subsisting  and  this  view  is  strengthened  by  the 
statement  of  Blackstone,25  that  "the  other  general  business  of 
the  leet  and  tourn  was  to  present  by  jury  all  crimes  whatsoever 
that  happened  within  their  jurisdiction,"  although  he  cites  no 
authority  in  support  of  his  opinion. 

That  the  accusing  body  was  the  result  of  a  slow  growth, 
eventually  being  confirmed  by  statute,  would  seem  to  receive 
support  from  the  nature  of  the  institution  of  frank-pledge. 
Twice  each  year  the  sheriff  would  visit  each  hundred  in  the 
county  and  keep  a  court  leet  where  he  would  view  the  frank- 
pledges,26  and  as  wrongdoers  were  at  such  times  awarded  pun- 
ishment, it  is  manifest  that  some  method  must  have  been  em- 
ployed to  make  the  offenders  known.  The  principal  thanes  and 
freeholders  of  the  hundred  being  responsible  for  their  subor- 
dinates, would  most  naturally  be  the  ones  upon  whom  would 
devolve  the  duty  of  presenting  the  offenders.  We  see  these 
customs  substantially  appearing  in  the  law  of  Ethelred,  which 
provides  that  a  gemot,27  that  is,  a  meeting  be  held  in  every 
wapentake  (hundred)  and  the  twelve  senior  thanes  go  out  and 
the  reeve  (sheriff)  with  them,  to  accuse  those  who  have  com- 
mitted any  offence.28 

The  statute  would  merely  seem  to  have  made  secure  that 
which  the  very  nature  of  frank-pledge  had  of  necessity  pre- 
23  4  Bl.  Com.  273. 

24  Wilkins  Leges  Anglo  Saxonicae  117. 

25  4  Bl.  Com.  274. 

26  4  Bl.  Com.  273. 

27  Bouvier's  Law  Dictionary  (Rawle's  Revision). 

28  Wilkins  Leges  Anglo  Saxonicae  117. 


0  THE  GRAND  JURY. 

viously  brought  forth.  That  it  was  but  declaratory  of  the  ex- 
isting law  would  seem  to  be  further  verified  by  the  fact  that  the 
statute  was  ordained  as  "frith-bot  for  the  whole  nation  at 
Woodstock  in  the  land  of  the  Mercians,  according  to  the  law  of 
the  English,"29  thereby  indicating  such  to  have  been  the  ex- 
isting law  in  some  parts  of  the  kingdom  at  least.  Whether  the 
number  composing  this  accusing  body  had  by  usage  been  fixed 
at  twelve  or  whether  it  was  first  definitely  fixed  by  the  statute 
cannot  be  determined,  but  the  statute  is  the  only  evidence  we 
have  of  the  number  necessary  to  present  offenders,  until  the 
time  of  Glanville,  nearly  two  hundred  years  later.  It  is  prob- 
able, however,  that,  like  the  sectatores,  the  number  was  inde- 
terminate until  the  statute  of  Ethelred  reduced  it  to  a  certainty, 
although  there  is  one  instance  even  as  late  as  the  reign  of  Henry 
III  (A.  D.  1221)  where  a  presentment  was  made  to  the  itin- 
erant justices  by  seven  jurors.30  That  the  number  should  be 
fixed  at  twelve  is  perhaps  due  to  the  superstition  of  the  period 
which  tolerated  the  trial  by  the  corsned  and  the  ordeal,  believ- 
ing God  would  miraculously  intervene  to  protect  the  innocent. 
Lord  Coke31  thinks  "that  the  law  in  this  case  delighteth  herself 
in  the  number  of  twelve  ....  and  that  number  of 
twelve  is  much  respected  in  holy  writ,  as  twelve  apostles,  twelve 
stones,  twelve  tribes,  &c." 

The  Norman  conquest,  while  it  brought  into  England  the 
customs  and  laws  of  the  conquerors,  did  not  materially  alter  the 
Saxon  laws  and  customs  relating  to  the  detection  and  punish- 
ment of  crime.  With  them  came  the  barbarous  trial  by  bat- 
tle,32 but  they  also  brought  what  afterward  became  a  blessing 
in  the  trial  by  jury.33 

Under  the  Norman  occupation  the  system  of  frank-pledge 
still  continued,  although  not  perhaps  of  its  former  importance 

29  Note  to  Grand  Juries  and  the  Pleas  of  Criminals,  (John  Lascelles), 
4  Law  Mag.  &  Rev.  (N.  S.)  767.     Stubbs  Select  Charters  72. 

30  Select  Pleas  of  the  Crown,  (Selden  Society)  Case  No.  162. 

31  Coke  on  Littleton  1553. 

32  The  Older  Modes  of  Trial,  (Prof.  J.  B.  Thayer)  5  Harv.  Law  Rev. 
65. 

33  Id.  p.  45- 


ITS  ORIGIN,   HISTORY  AND  DEVELOPMENT.  J 

now  that  the  accusing  body  in  each  hundred  regularly  made  its 
presentments,  and  its  importance  was  still  further  lessened  by 
the  Norman  appeal  with  its  wager  of  battle.  The  appeal  ma- 
terially promoted  the  importance  of  the  accusing  body,  for  un- 
less the  appellor  himself  suffered  the  m jury,  there  was  no  in- 
centive to  him  to  risk  his  life  or  liberty  in  the  trial  by  battle, 
when  the  crime  could  equally  well  be  presented  by  the  in- 
quest.34 

In  the  period  of  one  hundred  years  following  the  conquest, 
the  Normans  were  actively  engaged  in  introducing  their  laws 
and  customs  in  the  stead  of  the  Saxon  laws  and  customs.  It  is 
therefore  of  interest  that  at  the  close  of  this  period,  the  accus- 
ing body  should  receive  its  second  statutory  confirmation  and 
at  the  hands  of  a  descendant  of  William  the  Conqueror.  By 
the  Assize  of  Clarendon  A.  D.  1166,  it  was  enacted  "that  in- 
quiry be  made  in  each  county  and  in  each  hundred,  by  twelve 
lawful  men  of  the  hundred  and  four  lawful  men  of  every  town- 
ship— who  are  sworn  to  say  truly  whether  in  their  hundred  or 
township  there  is  any  man  accused  of  being  or  notorious  as  a 
robber,  or  a  murderer  or  a  thief,  or  anybody  who  is  a  harborer 
of  robbers,  or  murderers  or  thieves,  since  the  king  began  to 
reign.  And  this  let  the  justices  and  the  sheriffs  inquire,  each 
(officer)  before  himself."35  All  persons  thus  presented  were 
to  be  tried  by  ordeal. 

This  statute  marks  an  important  change  in  the  administra- 
tion of  the  criminal  law.  Prior  to  this  all  offences  were  tried 
in  the  county  or  hundred  courts,  but  now  those  offences  named 
in  the  statute  became  offences  against  the  peace  of  the  king  and 
were  cognizable  only  in  the  itinerant  courts  which  this  same 
statute  created.  It  is  thought  by  some  writers  that  these 
courts  were  not  created  by  this  statute,88  but  were  first  pro- 
vided for  by  the  statute  of  Northampton  A.  D.  1176,  but  it 
would  rather  seem  that  they  were  created  by  the  Assize  of  Clar- 

34  An  Essay  on  the  Law  of  Grand  Juries,   (E.  Ingersoll,  Philadelphia, 
1849)  ;  Lesser,  Hist.  Jury  System  136. 

35  Lesser's  Hist.  Jury  System  138. 

36  Forsyth  Trial  by  Jury  81. 


8  THE  GRAND  JURY. 

endon,37  that  of  Northampton  merely  dividing  the  kingdom 
into  six  circuits  as  the  Assize  of  1179  subsequently  divided  the 
kingdom  into  four  circuits.38  The  Assize  of  Clarendon  marks 
still  another  important  event  in  the  history  of  the  administra- 
tion of  the  criminal  law  in  England,  for  by  reason  of  what  was 
called  "the  implied  prohibition"  in  this  statute,  (the  statute 
provided  for  trial  by  the  ordeal)  compurgation  in  criminal 
cases  disappears  in  the  king's  courts  although  it  continued  un- 
til a  later  period  in  the  hundred  courts  where  the  sheriff  pre- 
sided.39 The  system  of  frank-pledge  while  itself  falling  into 
disuse,  really  formed  the  root  of  a  broader  scheme  for  adminis- 
tering justice. 

The  idea  of  itinerant  justices  was  not  in  use  among  the  Nor- 
mans at  the  time  of  the  conquest,  nor  does  it  seem  to  have  ever 
been  adopted  in  Normandy.  Under  the  Saxon  law  the  sheriff 
was  the  king's  officer  in  the  county,  and  was  appointed  each 
year.  During  his  term,  his  authority  in  the  county  was  su- 
preme except  when  directed  otherwise  by  the  king.40  It,  there- 
fore, was  an  easy  matter  in  order  to  increase  the  influence  of 
the  crown,  and  to  insure  the  administration  of  Norman  laws 
and  customs,  to  appoint  sheriffs  chosen  by  the  king  from  the 
justices  of  the  curia  regis*1  We  consequently  have  the  king's 
judicial  officer  acting  in  the  capacity  of  sheriff  and,  in  accord- 
ance with  the  Saxon  custom,  viewing  the  frank-pledges  in  each 
hundred  of  his  county  and  blazing  the  way  for  the  system  of 
itinerant  justices,  who  came  into  the  county  to  hold  the  eyre 
and,  like  the  sheriff,  administered  the  pleas  of  the  crown  in 
each  hundred.  The  inhabitants  gathered  before  the  itinerant 
justices  as  the  frank-pledges  gathered  before  the  sheriff;  and 
the  twelve  knights  made  their  presentments  to  the  justices  in 
the  same  manner  in  which  the  twelve  thanes  had,  under  the 
Saxon  law,  presented  offenders  before  the  sheriff. 

By  the  Assize  of  Northampton,  A.  D.  1176,  the  institution  of 


37  4  Bl.  Com.  422. 

38  Forsyth  Trial  by  Jury  82. 

39  The  Older  Modes  of  Trial,  (Prof.  J.  B.  Thayer)  5  Harv.  L.  Rev.  59. 

40  Bl.  Com.  Book  i,  p.  343;  Bispham  Equity  (5th  Ed.)  Sec.  5. 

41  Bispham  Equity  (sth  Ed.)  Sec.  5. 


ITS  ORIGIN     HISTORY  AND  DEVELOPMENT.  Q 

the  accusing  body  wa:  again  confirmed42  by  the  following  pro- 
vision :  that  "anyone  charged  before  the  king's  justices  with  the 
crime  of  murder,  theft,  robbery  or  receipt  of  such  offenders,  of 
forgery,  or  of  malicious  burning,  by  the  oaths  of  twelve  knights 
of  the  hundred :  if  there  were  no  knights,  by  the  oaths  of 
twelve  free  and  lawful  men,  and  by  the  oaths  of  four  out  of 
every  vill  in  the  hundred"  should  be  tried  by  the  ordeal.43  If 
he  failed  in  the  ordeal,  he  lost  a  hand  and  foot  and  was  ban- 
ished. If  he  was  acquitted  by  the  water  ordeal  he  still  suffered 
banishment  if  accused  of  certain  crimes.44 

This  statute  divided  the  kingdom  into  six  circuits  and  pro- 
vided for  holding  an  eyre  in  each  county  of  the  circuit  of  the 
justices  not  more  than  once  in  every  seven  years. 

The  treatise  of  Glanville  on  the  laws  of  England  was  written 
in  the  period  1 180  to  1 190,  and  is  of  great  interest  by  reason  of 
the  light  it  throws  upon  this  institution  and  the  administration 
of  justice  relating  to  the  pleas  of  the  crown.  The  old  Saxon 
custom  of  weregild  lost  its  force  with  the  coming  of  the  Nor- 
mal appeal  and  wager  of  battle,  and,  in  the  time  of  Glanville, 
when  an  appeal  was  once  properly  brought  which  concluded 
against  the  king's  peace,  the  parties  could  not  settle  the  dispute 
between  them  or  be  reconciled  to  each  other  except  by  the 
king's  license.45  Like  the  custom  of  weregild,  the  appeal  was 
a  personal  action,  and  in  those  appeals  which  were  cognizable 
in  the  king's  courts,  the  king  had  an  interest  by  virtue  of  the 
breach  of  the  peace,  but  this  right  was  only  exercised  when  the 
battle  was  not  waged.45*  When  the  appellee  emerged  victorious 
from  the  battle,  he  was  wholly  acquitted  of  the  charge  even 
against  the  king,  for  by  his  victory  he  purged  his  innocence 
against  them  all.49 

In  the  time  when  Glanville  wrote,  there  were  two  methods  of 


42  Lesser  Hist.  Jury  System  140. 

43  The  Older  Modes  of  Trial  (Prof.  J.  B.  Thayer)  5  Harv.  L.  Rev.  64; 
Lesser  Hist.  Jury  System  140. 

44  Reeves  Hist.  Eng.  Law,  Vol.  I,  p.  193. 

45  Glanville   (Beame's  Translation — Legal  Classic  Series)   282. 
45*  Britton  (Legal  Classic  Series)  86. 

46  Bracton-de  legibus,  (Sir  Travers  Twiss  ed.)    Vol.  II,  417. 


10  THE  GRAND  JURY. 

instituting  prosecutions,  viz.,  by  appeal  it  the  suit  of  the  per- 
son injured  or  his  proper  kinsman;  and  the  accusation  by 
the  public  voice,  that  is,  the  presentment  by  the  accusing  body 
that  the  defendant  was  suspected  of  certain  offences.47  If  the 
appeal  was  properly  brought,  the  trial  by  battle  was  usually 
awarded.  Whether  the  appellee  had  the  privilege  of  electing 
to  do  battle  or  submit  to  the  ordeal,  as  in  the  latter  part  of  the 
reign  of  King  John  he  might  elect  between  the  battle  and  the 
country,  does  not  appear.  It  is  certain,  however,  that  he  was 
not  entitled  to  demand  the  battle  in  all  cases.  If  the  appellor 
was  upward  of  sixty  years  of  age  or  was  adjudged  to  have  re- 
ceived a  mayhem,  he  seems  to  have  had  the  privilege  of  declin- 
ing battle,  and  the  defendant  was  then  compelled  to  purge  him- 
self by  the  ordeal.48  If  the  appellor  was  a  woman  and  was 
entitled  to  make  the  appeal,  the  defendant  was  obliged  to  either 
abide  by  her  proof  or  submit  to  the  ordeal.49  If  the  appeal 
failed,  or  before  battle  was  awarded  the  appellor  withdrew,  the 
accusing  body  was  asked  if  it  suspected  the  man  of  any  offence, 
and  if  it  did  he  was  obliged  to- clear  himself  by  the  ordeal,  as 
though  the  presentment  had  been  made  against  him  upon  sus- 
picion in  the  first  instance.50 

Up  to  this  time  (A.  D.  1190)  we  have  no  evidence  of  the 
petit  jury  being  used  in  criminal  cases,51  and  the  fact  that  Glan- 
ville  fails  to  make  any  reference  to  any  mode  of  trial  other  than 
the  ordeal  upon  presentments  of  the  accusing  body,  and  the 
battle  upon  appeals,  may  safely  be  taken  as  conclusive  that  the 
time  had  not  yet  arrived  when  a  defendant  was  permitted  to 
have  the  country  pass  upon  questions  affecting  his  life  or  his 
liberty.  The  accusing  inquest  seems,  however,  to  have  a  some- 
what wider  scope  than  heretofore  appears,  for  Glanville  speaks 
of  it  as  having  authority  to  make  inquisitions  concerning  nui- 


47  Glanville  (Beames  Translation — Legal  Classic  Series)  278;  i  Reeves 
Hist.  Eng.  Law  195. 

48  Glanville   (Beames  Translation — Legal  Classic  Series)  282. 

49  Id.  287. 

50  Bracton-de  legibus,  Vol.  II,  p.  447,  448. 

51  Hallam's  Middle  Ages,  Vol.  II,  p.  176,  177;  Palgrave  English  Com- 
monwealth 269. 


ITS  ORIGIN,   HISTORY  AND  DEVELOPMENT.  I  I 

sances  and  certain  other  matters.82  In  A.  D.  1194,  the  fifth 
year  of  Richard  I,  the  jurisdiction  of  the  itinerant  justices  was 
further  increased  and  certain  capitula  or  articles  of  inquiry 
were  delivered  to  them,  which  they  were  to  make  known  to 
the  accusing  body,  and  to  each  article  which  concerned  the  hun- 
dred, this  body  was  obliged  to  make  answer.53  The  four  men 
of  each  vill  or  township  mentioned  in  the  Assize  of  Clarendon 
and  the  Assize  of  Northampton  are  not  referred  to  in  these  in- 
structions to  the  justices,  which  one  writer  thinks  would  seem 
to  indicate  that  the  four  men  formed  no  part  of  the  accusing 
body." 

With  the  year  A.  D.  1201,  and  the  third  of  the  reign  of  King 
John,  we  have  the  court  rolls  of  the  eyres  which  the  itinerant 
justices  held  in  the  several  hundreds  of  their  respective  dis- 
tricts, which  the  efforts  of  the  Selden  Society85  are  bringing  to 
light,  and  many  doubtful  points  by  means  thereof,  are  being 
cleared  up.  From  these  records  we  are  enabled  to  obtain  some 
idea  of  the  instances  in  which  this  accusing  body  would  exer- 
cise its  right  of  presentment.  They  seem  to  have  presented 
where  they  had  knowledge  of,  or  suspected  a  person  of  an 
offence;58  where  a  person  was  accused,57  probably  by  some  one 
appearing  before  them  and  there  charging  a  person  with  an 
offence ;  where  an  appeal  had  been  held  to  be  null  ;58  where  an 
appeal  had  been  made  by  a  woman;59  and  apparently  in  all 
cases  where  appeals  had  been  made  concluding  against  the 
king's  peace.80  The  inquest  was  required  to  answer  fully  con- 
cerning each  article  of  the  capitula;81  and  if  they  failed  in 
this,  they  were  accused  of  concealing  the  truth  and  were  in  the 


52  Glanville   (Beames  Translation — Legal  Classic  Series)   194. 

53  Bracton-de  legibus,  Vol.  II,  p.  241 ;  i  Reeves  Hist.  Eng.  Law  aoi. 

54  The  Grand  Jury,  etc.,  in  Ireland  (Wm.  G.  Huband)  n. 

55  Select  Pleas  of  the  Crown. 

56  Id.  Cases  No.  5,  6,  12,  57. 

57  Id.  Cases  No.  10,  181. 

58  Id.  Case  No.  13;  Bracton-de  legibus,  Vol.  II,  p.  449. 

59  Select  Pleas  of  the  Crown,  cases  No.  68,  153. 

60  Id.  Cases  No.  15,  21. 

61  2  Reeves  Hist.  Eng.  Law  3;  Bracton-de  legibus,  (Sir  Travers  Twiss 
ed.)     Vol.  II,  241. 


12  THE  GRAND  JURY. 

king's  mercy  and  liable  to  be  fined  and  imprisoned.62  In  such 
case,  therefore,  it  is  very  reasonable  to  suppose  they  would 
present  all  persons  whom  they  suspected  or  knew  had  violated 
any  of  the  articles  with  which  they  were  charged,  irrespective 
of  the  fact  that  some  of  those  whom  they  presented  may  have 
been  regularly  appealed.  The  inquest  was  not  restrained  in 
any  manner  from  making  such  presentments,  nor  does  it  ap- 
pear that  they  were  required  to  make  presentment  of  such  cases 
except  where  the  appeal  had  failed.  When  we  also  consider 
that  the  eyre  was  held  in  the  county  only  once  in  every  seven 
years,  it  would  be  manifestly  impossible  for  the  freeholders  of 
each  hundred  to  remember  who  had  been  appealed  within  their 
hundred  during  the  period,  so  that  they  might  not  present  in 
such  cases.  Further  than  this,  the  manner  of  proceeding  be- 
fore the  justices  upon  the  appeals  would  seem  to  make  it  neces- 
sary in  the  interest  of  justice,  that  the  inquest  should  also  pre- 
sent those  offences  where  appeals  had  been  made. 

In  order  to  properly  make  his  appeal,  the  appellor  was  re- 
quired to  raise  the  hue  and  cry,  go  to  the  king's  sergeants, 
thence  to  the  coroners  of  the  county  where  his  complaint  was 
enrolled  word  for  word,  and  lastly  to  the  county  court,  where 
his  complaint  was  similarly  enrolled.63  Then  when  the  cause 
came  before  the  justices,  the  appellor  was  heard  and  the  appellee 
answered,  after  which  the  coroner's  rolls  were  read,  and  if  they 
or  the  majority  of  them  agreed  with  the  appellor  and  there  were 
no  good  exceptions,  then  the  appellee  could  choose  how  he 
would  be  tried.64  If  the  coroners'  rolls  disagreed,  but  were 

62  Bracton-de  legibus,  Vol.  II,  p.  239.     A  very  curious  analogy  to  this 
will  be  found  in  the  laws  of  the  State  of  Connecticut.    By  Gen.  St.  tit.  20, 
C.  12,  Sec.  23,  it  is  provided  that  a  sworn  grand  juror  shall  forfeit  $2,  if 
he  "shall  neglect  to  make  seasonable  complaint  of  any  crime  or  misde- 
meanor committed  within  the  town  where  he  lives,  which  shall  come  to  his 
knowledge."    In  Watson  v.  Hall,  46  Conn.,  204,  it  was  held  that  this  must 
be  construed  to  give  him  discretion  as  to  whether  the  offence  is  too  trivial 
for  a  criminal  prosecution,  and  he  is  not  liable,  if  in  good  faith,  he  omits 
to  complain. 

63  Bracton-de  legibus  (Sir  Travers  Twiss  ed.)  Vol.  II,  p.  425. 

64  Id.  p.  431.    This  discloses  a  change  in  the  law  subsequent  to  the  time 
when  Glanville's  Treatise  was  written,  as  the  appellee  was  apparently  at 
that  time  not  permitted  to  choose  the  method  of  trial.     Supra.  10. 


ITS  ORIGIN,   HISTORY  AND  DEVELOPMENT.  13 

evenly  divided,  then  the  sheriff's  roll  was  read,  and  accord- 
ingly as  this  showed,  the  trial  was  or  was  not  awarded.  If  it 
happened  that  an  appellor  did  not  prosecute  his  appeal,  there 
seems  to  have  been  no  provision  in  the  law  for  making  known 
to  the  justices  such  complaint  as  contained  in  the  rolls,  yet  it 
might  well  happen  that  the  appellee  was  then  confined  in  prison. 
It  would  consequently  appear  that  if  the  inquest  did  not  present 
the  appellee  where  an  appeal  had  been  made,  not  only  might  a 
felony  go  unpunished,  but  an  injury  be  done  to  the  king  in  the 
concealment  by  the  inquest  of  the  breach  of  his  peace.65  How, 
then,  the  accusing  body  could  discriminate  between  appeals  that 
were  prosecuted,  and  those  where  the  appellor  defaulted,  ac- 
cusations and  rumors,  and  present  in  all  cases  except  where  the 
appeal  was  prosecuted,  particularly  when  they  were  organized, 
sworn,  charged  and  went  about  the  performance  of  their  duties 
before  the  court  was  ready  to  hear  the  criminal  pleas,  cannot 
easily  be  perceived.  It  would  seem  more  probable  that  they 
presented  in  all  cases  where  they  had  either  actual  knowledge 
or  public  fame  upon  which  to  base  their  presentment,  irrespec- 
tive of  the  fact  that  an  appeal  was  then  pending. 

Two  instances  of  this  are  disclosed  by  the  Selden  Society68 
in  their  researches  into  the  record  rolls  of  the  courts  held  by 
the  itinerant  justices  in  the  reign  of  King  John,  in  both  of 
which  the  inquest  made  presentments  of  offences  in  which  ap- 
peals had  been  made,  and  in  both  cases  the  inquest  was  ad- 
judged in  the  king's  mercy  because  the  appeals  were  found  to 
have  concluded  against  the  sheriff's  peace  and  therefore  were 
improperly  presented  in  the  king's  court.  This  view  we  see 
supported  by  the  proceedings  in  the  modern  case  of  Ashford  vs. 
Thornton.67  In  this  case  the  defendant  was  indicted  for  mur- 
der, tried  and  acquitted.  The  brother  of  the  murdered  wo- 
man then  brought  an  appeal  and  the  appellee  elected  to  wage 
his  battle,  which  the  appellor  declined.  The  attorney  general 

65  Bracton-de  legibus,  (Sir  Travers  Twiss  cd.)  Vol.  II,  p.  449. 

66  Select  Pleas  of  the  Crown,  Cases  No.  15,  21. 

67  Ashford  v.  Thornton  I  B.  &  Aid  405.    This  was  the  last  time  an  ap- 
peal was  brought  in  England,  the  wager  of  battle  being  abolished  in  1810 
by  Statute  59,  Geo.  Ill,  C.  46. 


14  THE  GRAND  JURY. 

thereupon  caused  the  defendant  to  be  immediately  arraigned 
upon  an  indictment  which  had  been  found  in  the  meantime  for 
the  felony  at  the  king's  suit,  to  which  at  once  the  defendant 
pleaded  his  former  acquittal  upon  the  indictment  for  murder, 
and  the  plea  was  adjudged  sufficient. 

The  rolls  of  the  courts  held  by  the  itinerant  justices68  re- 
veal a  practice  which  adds  further  burdens  to  the  already  diffi- 
cult task  of  tracing  the  development  of  the  accusing  body. 
Where  the  inquest  presented  anyone  either  upon  suspicion  or 
accusation  who  had  not  been  appealed,  the  presentment  of  the 
inquest  does  not  appear  to  have  been  regarded  as  sufficiently 
conclusive  in  all  cases  to  award  the  ordeal.  In  such  cases,  the 
justices  asked  the  four  neighboring  townships  if  they  suspected 
the  defendant,  and  if  they  did,  then  he  was  obliged  to  purge 
himself  by  the  ordeal.69  What  the  office  of  the  four  town- 
ships actually  was,  how  they  came  to  exercise  this  office,  and 
in  what  instances  they  exercised  it  are  purely  matters  of  con- 
jecture. Where  an  appeal  was  declared  null  or  for  some  other 
cause  failed  and  the  inquest  ignored  the  breach  of  the  king's 
peace,  the  verdict  of  the  inquest  seems  to  have  been  conclu- 
sive,70 and  the  four  townships  were  not  called  upon,  and  this 
also  seems  to  be  true  in  many  cases  where  the  inquest  pre- 
sented upon  suspicion  or  accusation.71 

Glanville  makes  no  reference  to  the  four  townships,  and  his 
silence  is  singular  if  the  townships  were  called  upon  to  officially 
act.  It  is  also  to  be  noted  that  he  makes  no  reference  to,  or 
comment  upon,  the  four  freemen  out  of  every  vill  in  the  hun- 
dred referred  to  in  the  Assize  of  Clarendon.  If  the  statute  had 
reference  to  criminal  proceedings,  this  new  appendage  of  the 
inquest  was  such  a  departure  from  the  ancient  law  as  to  be  the 
subject  of  comment.  That  this  comment  was  not  made,  leaves 
but  two  conclusions  to  be  drawn,  either  that  it  is  a  mistaken 
idea  in  holding  this  provision  of  the  statute  to  relate  to  the 


68  Select  Pleas  of  the  Crown  (Selden  Society). 

69  Id.  Cases  No.  5,  6,  10,  12,  57,  181. 

70  Id.  Case  No.  13.     This  case  is  probably  the  first  recorded  instance 
of  an  "ignoramus."    And  see  Case  No.  153. 

71  Select  Pleas  of  the  Crown,  Cases  No.  157,  170. 


ITS  ORIGIN,   HISTORY  AND  DEVELOPMENT.  15 

accusing  inquest,  or  that  it  remained  a  dead  letter  until  after 
Glanville's  period. 

Whether  or  not  the  "four  freemen  out  of  every  vill"  and  the 
"four  townships"  were  identical,  can  only  be  a  subject  for  con- 
jecture. It  remains,  however,  that  the  only  jurist  who  wrote 
in  the  period  A.  D.  1166-1200,  mentions  neither,  and  the  rolls 
of  the  courts  held  by  the  itinerant  justices  beginning  with  A. 
D.  1 20 1,  make  reference  only  to  the  "four  townships"  being 
inquired  of.  Whatever  may  have  been  the  purpose  of  this  pro- 
vision of  the  Assize  of  Clarendon,  there  seems  to  be  no  mention 
of  the  four  freemen  until  Bracton's  treatise  was  written,  and 
then  but  little  light  is  shed  upon  the  capacity  in  which  they 
were  required  to  act.  Bracton,  however,  shows  that  they 
formed  no  part  of  the  inquest  which  presented  the  defendant. 

The  court  rolls  disclose  that  the  four  townships  did  not  act 
until  after  the  inquest  had  presented  on  suspicion.  In  discuss- 
ing a  presentment  on  suspicion  Glanville  states  that  the  de- 
fendant was  immediately  thereafter  to  be  taken  into  custody. 
He  then  continues:  "The  truth  of  the  fact  shall  then  be  in- 
quired into  by  means  of  many  and  various  inquisitions  and  in- 
terrogations made  in  the  presence  of  the  justices,  and  that  by 
taking  into  consideration  the  probable  circumstances  of  the 
facts,  and  weighing  each  conjecture  which  tends  in  favor  of 
the  accused,  or  makes  against  him ;  because  he  must  purge  him- 
self by  the  ordeal,  or  entirely  absolve  himself  from  the  crime 
imputed  to  him."72 

If  this  paragraph  could  be  taken  as  referring  to  the  four 
townships,  then  they  were  only  asked  when  the  justice  had  a 
doubt  concerning  the  presentment  of  the  inquest;  but  that  it 
does  not  would  seem  more  likely  in  view  of  the  fact  that  Glan- 
ville does  not  mention  them.  That  it  does  not  have  reference 
to  the  four  freemen  out  of  every  vill  in  the  hundred  may  be 
regarded  as  equally  conclusive  by  his  omission  to  mention 
them,  and  particularly  so  in  view  of  the  fact  that  he  was  an 
itinerant  justice  from  1176  to  1180,  a  time  when  he  must 
necessarily  have  been  brought  in  close  contact  with  them  if  they 
were  called  upon  to  act,  .and  subsequently  wrote  his  famous 

72  (Beames  Translation — Legal  Classic  Series),  p.  278. 


1 6  THE  GRAND  JURY. 

treatise.73  That  they  were  not  brought  into  exi.'.'ly  arraigned 
instructions  of  1194  is  equally  well  settled,  for  meantime  for 
referred  to  therein.74  That  they  were  not  callecMe  defendant 
cases  has  already  been  seen.75  So  far  as  the  cases  s?r  murder, 
power  did  not  extend  beyond  confirming  what  the  inqu. 
already  presented,  and  they  apparently  could  not  nullity1  re- 
presentment.  It  would  therefore  seem  that  no  provision  Cv 
law  made  their  use  obligatory,  otherwise  they  must  have  acted 
in  all  cases ;  and  when  they  were  called  upon  to  act,  they  were 
limited  to  a  concurrence  with  what  the  inquest  had  presented, 
and  if  they  did  not  concur,  their  verdict  had  no  effect  upon  the 
result.  The  townships  appear  never  to  have  acted  until  the 
inquest  made  its  presentment.70 

They  did  not  act  with  the  accusing  jurors  as  a  trial  jury  after 
the  defendant  had  been  presented,  otherwise  he  was  obliged  to 
submit  to  two  trials — the  petit  jury  as  thus  composed,  and  the 
ordeal,  and  then  too,  the  trial  by  jury  in  criminal  cases  had  not 
yet  come  into  use.77  It  is  therefore  probable  that  it  was  op- 
tional with  the  justices  whether  or  not  they  would  inquire  of 
the  four  townships,  and  they  did  this  only  to  satisfy  themselves 
whether  the  ill  repute  of  the  defendant  was  believed  by  others 
than  the  accusing  body. 

Mr.  Forsyth78  makes  this  comment  upon  the  relation  which 
the  accusing  body  bore  to  the  four  townships :  "We  here  see 
that  the  neighboring  townships  were  associated  with  the  jury 
in  the  inquest;  and  this  was  by  no  means  an  unusual  practice. 
But  they  were  not  considered  part  of  the  jury,  but  seem  rather 
to  have  assisted  in  the  character  of  witnesses,  and  to  have  con- 
stituted part  of  the  fama  publica." 

We  have  still  to  consider  the  methods  of  trial  in  force  at  this 


73  This  is  doubted  by  eminent  authors  who  attribute  it  to  Hubert  Walter, 
who  was  clerk  to  Glanville  at  the  time  he  was  Chief  Justiciar. — See  Pol- 
lock &  Maitland  Hist.  Eng.  Law,  Vol.  I,  p.  164 

74  The  Grand  Jury,  etc.,  in  Ireland  (Wm.  G.  Huband),  p.  n. 

75  Supra  14. 

76  See  generally  the  cases  in  Select  Pleas  of  the  Crown. 

77  Lesser  Hist.  Jury  System  142. 

78  Trial  by  Jury,  p.  166. 


i'S  ORIGIN,   HISTORY  AND  DEVELOPMENT.  I/ 

accusing  inq  to  fully  comprehend  the  duty  of  the  inquest  in 
Glanville's  p 

Whether  •  by  battle  was  in  force  upon  appeals  properly 
"four  tovut  the  exceptions  which  might  be  taken  to  the  appeal 
jectur^oming  more  numerous.  The  right  of  the  appellee  to 
in  f\ie  battle  and  put  himself  upon  the  country  is  not  men- 
oned  by  Glanville,  nor  does  there  seem  to  be  a  recorded  in- 
stance of  it  until  the  early  years  of  King  John's  reign. 

The  first  instances  where  the  accused  was  allowed  to  put  him- 
self upon  the  country,  appear  to  have  been  the  result  of  an  ap- 
plication to  the  favor  of  the  king  and  the  payment  to  him  of  a 
sum  of  money  for  the  issuance  of  a  writ  awarding  an  inquest.79 
These  cases  were,  however,  rare,  and  what  few  cases  appear  in 
the  books  give  but  little  information  concerning  the  instances 
in  which  the  king  would  grant  such  a  writ.80  If  wager  of 
battle  was  declined  and  the  king  petitioned  for  a  writ  awarding 
an  inquest,  if  granted,  there  was  apparently  no  accusation  made 
by  the  accusing  body  against  such  defendant  for  the  breach  of 
the  king's  peace ;  the  verdict  of  the  trying  inquest  being  alone 
given  and  was  conclusive. 

It  was  provided  by  Article  36  of  the  Magna  Charta  of  King 
John  that  writs  awarding  an  inquest  should  no  longer  be  sold, 
but  be  of  right.81  It  may,  however,  be  doubted  whether  this 
provision  was  intended  to  apply  to  writs  thus  sold  awarding  an 
inquest  in  criminal  cases.82  It  is  more  probable  that  it  was  in- 
tended to  apply  to  writs  awarding  an  assize,  for  the  statutes  of 
Clarendon  and  Northampton  had  made  provision  for  such  an 
assize  in  determining  property  rights.  So  far  as  the  inquisi- 
tion to  determine  title  to  real  property  was  concerned,  this  had 

79  Lesser  Hist.  Jury  System  142,  144 ;  Forsyth  Trial  by  Jury  166. 

80  Select  Pleas  of  the  Crown. 

81  Magna  Charta  of  King  John,  Article  36,  provided :    "Nihil  detur  vel 
capiatur  de  cetero  pro  brevi  inquisitionis  de  vita  vel  membris,  sed  gratis 
concedatur  et  non  negatur."    Stubbs  Select  Charters,  p.  301.     In  the  con- 
firmation of  the  Great  Charter  by  Henry  III,  in  1216,  Article  36  of  King 
John's  Charter  becomes  Article  29 :  Stubbs  Select  Charters,  p.  342. 

82  But  rather  a  contrary  view  is  expressed  by"  Professor  J.  B.  Thayer 
in  The  Jury  and  its  Development,  5  Harv.  L.  Rev.  265,  although  no  rea- 
sons are  given  for  the  opinion  he  expresses. 

2 


l8  THE  GRAND  JURY. 

become  a  fixed  method  of  procedure  which  almost  universally 
superseded  the  determination  of  such  issue  by  the  wager  of 
battle.  In  criminal  proceedings,  however,  the  inquest  was 
wholly  foreign  to  their  institutions  and  something  seemingly  to 
be  shunned  rather  than  encouraged. 

The  ordeal  which  in  Glanville's  time  was  generally  awarded 
when  the  battle  could  not  be  waged,  was  in  full  vigor  during 
this  period  up  to  the  year  1215,  when  by  the  action  of  the 
Fourth  Lateran  Council  of  Innocent  III,  by  which  the  clergy 
were  expressly  forbidden  10  participate  in  the  ceremonies  of  the 
ordeal,  the  practice  came  t^  an  end  thereby  opening  the  way  for 
the  trial  by  the  country.83 

It  is  said  by  Professor  Thayer84  that  "the  Assize  of  Claren- 
don, in  1166,  with  its  apparatus  of  an  accusing  jury  and  a  trial 
by  ordeal  is  thought  to  have  done  away  in  the  king's  courts 
with  compurgation  as  a  mode  of  trial  for  crime ;  and  now  the 
Lateran  Council,  in  forbidding  ecclesiastics  to  take  part  in  trial 
by  ordeal,  was  deemed  to  have  forbidden  that  mode  of  trial,  as 
well  in  England  as  in  all  other  countries  where  the  authority 
of  the  Council  was  recognized.  The  judges  would  naturally 
turn  to  the  inquest." 

It  is  reasonable  to  suppose  that  the  inquest  would  be  adopted 
as  the  learned  writer  above  quoted  says,  for  the  inquest  was 
the  only  mode  of  trial  remaining  by  which  suspected  persons 
might  be  tried.85  But  this  the  judges  could  not  do  unless  au- 
thorized by  the  king.  The  next  eyre  was  held  in  the  years 
1218-19,  and  the  judges  had  started  on  their  journey  when  the 
order  of  the  king  in  council  was  sent  to  them  in  the  following 
words :  "When  you  started  on  your  eyre  it  was  as  yet  unde- 
termined what  should  be  done  with  persons  accused  of  crime, 
the  Church  having  forbidden  the  ordeal.  For  the  present  we 
must  rely  very  much  on  your  discretion  to  act  wisely,  accord- 
ing to  the  special  circumstances  of  each  case."  The  judges  were 

83  Lesser  Hist.  Jury  System  142,  Note  24;  Hallam's  Middle  Ages,  Note 
to  Chapter  VIII ;  Stubb's  Select  Charters,  p.  142. 

84  The  Jury  and  its  Development,  5  Harv  L.  Rev.  265. 

85  While  trial  by  battle  was  still  in  use,  it  could  only  be  used  where  an 
appeal  had  been  properly  brought. 


ITS  ORIGIN,   HISTORY  AND  DEVELOPMENT.  IQ 

then  given  certain  general  instructions :  Persons  charged  with 
the  graver  crimes,  who  might  do  harm  if  allowed  to  abjure  the 
realm,  are  to  be  imprisoned,  without  endangering  life  or  limb. 
Those  charged  with  less  crimes,  who  would  have  been  tried  by 
the  ordeal  may  abjure  the  realm.  In  the  case  of  small  crimes 
there  must  be  pledges  to  keep  the  peace.86 

This  is  one  of  the  most  important  and  interesting  periods  of 
English  history,  for  at  this  time  the  signing  of  the  Great  Char- 
ter occurs,  establishing  the  liberties  of  the  people,  and  the  sys- 
tem which  was  to  be  most  potent  in  assuring  these  liberties 
according  to  the  guaranties  of  the  Charter,  supplanted  a  cus- 
tom that  was  brutal  in  the  extreme. 

Bracton,87  who  wrote  clearly  and  at  great  length,  in  the  reign 
of  Henry  III,  sets  forth  with  precision  the  various  methods  of 
prosecuting  offenders  against  the  law.  He  points  out  that 
where  there  was  a  certain  accuser  he  might  make  his  appeal  or 
might  sue,  that  is,  make  his  accusation  before  the  inquest ;  that 
when  the  appeal  had  fallen,  the  king  might  sue  on  behalf  of  his 
peace;  and  finally  the  presentment  which  the  inquest  might 
make  of  persons  not  accused  or  appealed,  but  suspected  by  the 
inquest  to  be  guilty  by  reason  of  public  fame.88  This  is  a  lucid 
summing  up  of  the  methods  then  pursued,  as  has  been  hereto- 
fore shown,  and  may  reasonably  be  assumed  to  have  been  the 
method  in  vogue  at  least  since  the  Assize  of  Clarendon,  and 
from  possibly  an  earlier  date.  The  workings  of  the  system 
are  described  carefully  and  with  much  attention  to  detail.89 
When  the  justices  proposed  holding  an  eyre  in  any  county  "a 
general  summons  issues  to  appear  before  the  justices  itinerant 
and  should  issue  at  least  fifteen  days  prior  to  their  coming." 

When  the  justices  come  the  writs  authorizing  them  to  hold 
an  itcr  are  read,  after  which  one  of  the  older  and  more  discreet 
of  them  sets  forth  the  cause  of  their  coming  and  what  is  the 
utility  of  their  itineration,  and  what  is  the  advantage  if  peace 
be  observed.  After  this  they  go  to  a  secret  place  and  call  four 

86  Maitland  Glou.  Pleas  XXXVIII. 

87  de  legibus  (Sir  Travers  Twiss  ed). 

88  Bracton-dc  legibus,  Vol.  II,  p.  451. 

89  Id.  Vol.  II,  p.  235,  et.  seq. 


2O  THE  GRAND  JURY. 

or  six  of  the  greater  men,  the  busones,  of  the  county  to  them 
and  consult  with  them  in  turn  and  explain  that  the  king  has 
provided  that  all  knights  and  others  of  the  age  of  fifteen  and 
upwards  ought  to  swear  that  they  will  not  harbor  outlaws,  etc., 
and  will  arrest,  if  possible,  those  whom  they  regard  as  sus- 
pected, without  waiting  for  the  mandate  of  the  justices.  After- 
ward the  sergeants  and  bailiffs  of  the  hundred  are  convoked 
and  the  inhabitants  of  the  hundred  are  enrolled  in  order.  The 
sergeants  each  shall  pledge  his  faith  "that  he  will  choose  from 
each  hundred  four  knights  who  shall  come  forthwith  before 
justices  to  perform  the  precept  of  the  lord  the  king,  and  who 
shall  forthwith  swear  that  they  will  choose  twelve  knights  or 
free  and  legal  men  if  knights  cannot  be  found,  who  have  no  suit 
against  any  one  and  are  not  sued  themselves,  nor  have  any 
evil  fame  for  breaking  the  peace,  or  for  the  death  of  a  man  or 
other  misdeed,"  and  the  names  of  the  twelve  are  placed  in  a 
schedule  and  delivered  to  the  justices.  Then  the  principal  one 
shall  make  this  oath :  "Hear  this  ye  justices  that  I  will  speak 
the  truth  concerning  this  which  ye  shall  ask  me  on  the  part  of 
the  lord  the  king,  and  I  will  do  faithfully  that  which  you  shall 
enjoin  me  on  the  part  of  the  lord  the  king,  and  I  will  not  for 
any  one  omit  to  do  so  according  to  my  ability,  so  may  God  help 
me  and  these  Holy  Gospels  of  God.'90  And  afterward  they 
shall  each  of  them  swear  separately  and  by  himself:  'The 
like  oath  which  A.  the  first  juror  has  here  sworn,  I  will  keep 
on  my  part  so  may  God  help  me  and  these  Holy  etc."91 

When  this  has  been  done  the  justices  read  to  the  accusing 
body  the  various  articles,  to  which  the  inquest  shall  make  true 
answers  and  have  their  verdict  there  by  a  certain  day.  It  is 
said  quietly  to  them  that  if  they  know  of  anyone  in  the  hundred 
of  evil  repute,  they  shall  seize  him  if  possible,  otherwise  his 
name  is  to  be  secretly  conveyed  to  the  justices,  that  the  sheriff 
may  seize  him  and  bring  him  before  the  justices. 

"And  the  amercers  (jurors)  shall  pledge  their  fealty  to  do 
this  faithfully,  that  they  will  aggrieve  no  one  through  enmity 
nor  show  deference  to  any  one  through  love,  and  that  they  will 

90  Bracton-de  legibus,  Vol.  il,  p.  239,  (Sir  Travers  Twiss  ed). 

91  Bracton-de  legibus,  (Sir  Travers  Twiss  ed.)  Vol.  II,  p.  241. 


ITS  ORIGIN,   HISTORY  AND  DEVELOPMENT.  21 

conceal  those  things  which  they  have  heard."02  This  would 
appear  to  be  the  first  reference  we  have  to  the  inquest  observ- 
ing a  pledge  of  secrecy,  that  feature  of  the  grand  jury  which 
has  aroused  the  strongest  criticism.  The  purpose  of  this  pro- 
vision would,  however,  seem  to  have  been  to  prevent  the  escape 
of  offenders  who  were  presented  by  the  inquest.  The  proceed- 
ings were  not  as  they  are  at  the  present  time  to  be  kept  secret 
from  every  one,  for  the  justices  had  the  power  if  they  suspected 
the  inquest,  to  inquire  of  each  member  separately  or  of  the  in- 
quest generally,  the  causes  which  induced  such  action.98 

We  find  that  Bracton  mentions  but  two  kinds  of  trial  in 
criminal  cases,  the  battle  and  the  country.  It  remains  to  con- 
sider how  these  trials  were  awarded  in  relation  to  the  method 
of  instituting  the  proceedings  against  the  offender.  If  an  ap- 
peal was  made,  after  all  exceptions  to  it  had  been  disposed  of, 
the  appellee  was  entitled  to  choose  the  wager  of  battle  or  put 
himself  upon  the  country,  but  if  he  chose  the  country  he  could 
not  afterward  retract  and  offer  to  defend  himself  by  his  body.94 
If  the  appellor  was  a  woman,  the  appellee  was  compelled  to  put 
himself  upon  the  country  or  be  adjudged  guilty;  and  if  a  man 
over  the  age  of  sixty  years,  or  who  had  a  mayhem,  the  appellee 
was  obliged  to  put  himself  upon  the  country,  unless  the  appellor 
was  willing  to  wage  battle,  but  with  these  exceptions  it  was 
optional  with  the  appellee  to  choose  the  battle  or  the  country, 
but  he  could  only  choose  the  battle  if  the  appeal  was  of  a 
felony. 

Where  the  initial  step  in  the  prosecution  was  the  presentment 
by  the  accusing  body,  or  where  the  appeal  failed  and  the  de- 
fendant was  presented  by  the  inquest,  then  he  had  no  alterna- 
tive but  to  place  himself  upon  the  country. 

Whether  when  a  defendant  placed  himself  upon  the  country, 
he  placed  himself  upon  the  same  jurors  who  accused  him,  has 
been  a  subject  of  wide  discussion,  and  able  authors  express  con- 
trary opinions  upon  this  point.  Mr.  Forsyth95  says  they  "for 

92  Bracton-dc  legibus,  (Sir  Travcrs  Twiss  ed.)  p.  243. 

93  Id.  p.  453- 

94  Id.   p.   403. 

95  Trial  by  Jury  164;  but  sec  Id.  p.  170. 


22  THE  GRAND  JURY. 

a  long  time  seem  to  have  united  the  two  functions  of  a  grand 
jury  to  accuse,  and  a  petit  jury  to  try  the  accused."  Mr. 
Reeves96  considers  that  the  defendant  put  himself  upon  the 
same  jury  which  indicted  him  and  then  the  jury  "under  the  di- 
rection of  the  justices  ....  were  to  reconsider  their 
verdict  and  upon  such  review  of  the  matter  they  were  to  give 
their  verdict  finally."  Mr.  Crabb97  gives  utterance  to  the 
same  thought,  but  states  that  if  the  defendant  "had  suspic- 
ion of  any  of  the  jurors  he  might  have  them  removed."  Mr. 
Ingersoll98  considers  it  doubtful  that  in  Bracton's  time  the  jury 
which  tried  offenders  was  composed  of  the  same  persons  who 
had  indicted  him.  Bracton99  describes  the  method  of  proceed- 
ing with  the  trial  jury  in  the  following  language : 

"In  order  that  the  proceeding  to  a  judgment  may  be  more 
safe  and  that  danger  and  suspicion  may  be  removed,  let  the  jus- 
tice say  to  the  person  indicted,  that  if  he  has  reason  to  suspect 
any  one  of  the  twelve  jurors  he  may  remove  him  for  just 
grounds.  And  let  the  same  thing  be  said  of  the  townspeople,  that, 
if  there  have  been  any  capital  enmities  between  any  of  them  and 
the  person  indicted,  on  account  of  covetousness  to  possess  his 
land,  as  aforesaid,  they  are  all  to  be  removed  upon  just  suspic- 
ion, so  that  the  inquisition  may  be  free  from  all  suspicion. 
Twelve  jurors  therefore  being  present  and  four  townspeople, 
each  of  the  townspeople  or  all  together,  each  holding  up  his 
hand  shall  swear  in  these  words  :100 

"Hear  this,  ye  justices,  that  we  will  speak  the  truth  concern- 
ing those  things,  which  ye  shall  require  from  us  on  the  part  of 
the  lord  the  king,  and  for  nothing  will  we  omit  to  speak  the 
truth,  so  God  us  help,"  &c. 

This  statement  of  the  action  of  the  petit  jury,  made  when 
the  institution  was  in  its  infancy,  discloses  several  interesting 
facts.  We  see  without  question  that  an  inquest  had  indicted 
the  defendant  before  this  body  was  required  to  determine  the 

96  2  Hist.  Eng.  Law  33. 

97  Hist.  Eng.  Law  162. 

98  Essay  on  Law  of  Grand  Juries  (E.  Ingersoll,  Philadelphia,  1849). 

99  de  legibus,  (Sir  Travers  Twiss  ed.)     Vol.  II,  p.  455. 

100  Bracton-de  legibus,  (Sir  Travers  ed.)    Vol.  II,  p.  457. 


ITS  ORIGIN,   HISTORY  AND  DEVELOPMENT.  23 

issue.  We  see  now  for  the  first  time  the  four  townspeople 
mentioned  in  the  Assize  of  Clarendon,  who  apparently  form  a 
part  of  the  trial  jury.  For  while  the  accusing  body  consisted 
of  but  twelve  jurors,  the  trying  jury  was  not  so  limited,  and  in- 
stances will  be  seen  where  the  trial  jury  consisted  of  twenty- 
four.101  If,  when  the  oath  was  taken  by  the  four  townspeople, 
the  twelve  jurors  were  not  then  sworn,  as  may  well  be  deduced 
from  Bracton's  statement,102  then  it  would  seem  probable  that 
the  jurors  were  the  same  persons  who  had  indicted  the  defend- 
ant, for  they  must  have  been  sworn  at  some  prior  stage  of  this 
particular  proceeding.  If,  however,  by  this  paragraph,  Brae- 
ton  means  to  convey  the  idea  that  the  entire  sixteen  were  sworn 
at  one  time,  then  it  might  well  be  that  the  members  of  the  try- 
ing jury  differed  from  the  accusing  body.  In  either  event  the 
make  up  of  the  trying  jury  was  changed  by  adding  the  four 
townspeople,  while  if  it  was  the  original  accusing  jury,  charged 
with  the  trial  of  the  defendant  after  they  had  indicted  him,  it 
might  be  still  further  and  materially  changed  by  challenges  for 
cause.108 

The  theory  that  the  entire  sixteen  were  sworn  at  one  time  is 
strengthened  by  noting  the  difference  in  the  oath  taken  by  those 
acting  as  the  accusing  body  and  those  who  are  to  try  the  truth 
of  the  accusation.104  The  trial  jurors  merely  swear  that  they 
will  speak  the  truth  as  to  the  things  required  of  them.  This 
was  in  strict  accord  with  their  original  character  as  witnesses 
of  the  facts  of  which  they  spoke  the  truth.  The  oath  of  the 
accusing  juror  was  much  more  comprehensive,  and  required  not 
only  that  the  juror  should  speak  the  truth,  but  that  he  should 
do  the  things  enjoined  upon  him  on  the  part  of  the  king  and 
"not  for  any  one  omit  to  do  so." 

There  is  still  another  and  what  is  perhaps  the  strongest  argu- 

101  Post  24,  25. 

102  Supra.  22. 

103  Bracton-dc  legibus,  (Sir  Travers  Twiss  ed.)    Vol.  II,  p.  455.    That 
a  petit  juror  was  a  member  of  the  grand  jury  which  found  the  indictment, 
was  made  ground  of  challenge  by  25  Edw.   Ill,  Stat  5,  Chap.  5.     See 
Robert's  Digest  of  British  Statutes,  p.  xxx,  also  p.  346. 

104  Compare  the  two  oaths  Supra.  20  and  22. 


24  THE  GRAND  JURY. 

ment  that  can  be  made  against  the  trial  jury  being  the  same 
jury  which  accused.  The  accusing  body  was  composed  o£ 
twelve  only,  who  presented  all  offenders.105  In  order  that 
they  might  present,  it  was  not  necessary  that  all  the  jurors 
should  be.  cognizant  of  the  facts  as  will  appear  by  the  following 
statement  by  Bracton.  Speaking  of  indicting  upon  common 
fame  he  says,106  "some  one  will  probably  say,  or  the  greater 
part  of  the  jurats,  that  they  have  learnt  those  things  which  they 
set  forth  in  their  verdict  from  one  of  the  associate  jurats."  It  is 
therefore  very  clear  that  the  accusing  body  could  indict  upon 
the  knowledge  of  one  of  their  number.  It  is  equally  plain,  and 
in  this  all  writers  apparently  agree,  that  the  trial  jury  was  a 
jury  of  witnesses  who  had  personal  knowledge  of  the  facts.107 
If  the  twelve  of  the  trial  jury  did  not  agree,  then  the  ancient 
doctrine  of  "afforciament,"  that  is,  the  adding  of  jurors  who 
were  cognizant  of  the  facts  until  twelve  could  be  found  who 
agreed  upon  a  verdict  was  employed.108  This  was  not  done 
with  the  accusing  body.  It  would  consequently  seem  that  the 
jury  which  tried  was,  in  most  cases,  a  different  body  from  that 
which  accused,  for  the  accusing  body  found  all  indictments 
with  no  change  in  its  make  up,  while  the  trial  jury  had  not  only 
four  townspeople  added  to  it,  but  the  jurors  themselves  were 
subject  to  the  defendant's  challenge  for  cause.  The  record 
rolls109  of  the  itinerant  justices  show  two  instances  of  a  sep- 
arate jury  trying  the  offenders  after  they  were  indicted.  The 
first  was  an  appeal  by  a  woman  for  the  murder  of  her  husband, 
and  she  having  remarried  and  no  appeal  being  made  by  her  hus- 
band, it  was  adjudged  that  the  country  should  inquire  concern- 
ing the  truth.  "And  the  twelve  jurors  say  that  he  is  guilty  of 
that  death,  and  twenty-four  knights  (other  than  the  twelve) 
chosen  for  this  purpose  say  the  same."110  In  the  second  case 


105  Supra,  d,  7,  g. 

106  Bracton-de  legibus,  (Sir  Travers  Twiss  ed.)  Vol.  II,  p.  455. 

107  Forsyth — Trial  by  Jury,   104;  Lesser  Hist.  Jury  System   104,   113; 
Hallam's  Middle  Ages,  note  to  Chapter  VIII. 

108  Forsyth — Trial  by  Jury,  105;  Lesser  Hist.  Jury  System  113. 

109  Select  Pleas  of  the  Crown  (Selden  Society),  Cases  No.  153,  157. 
no  Id.  Case  No.  153. 


ITS  ORIGIN,   HISTORY  AND  DEVELOPMENT.  25 

the  defendant  was  taken  on  an  indictment  for  theft,  and  it  was 
adjudged  the  truth  should  be  inquired  of  by  the  country.  "And 
twenty- four  knights  chosen  for  the  purpose,  say  the  same  as 
the  said  twelve  jurors."m\Ve  consequently  see  that  at  a  period 
forty  years  before  Bracton's  work  was  written,  the  use  of  two 
juries  had  been  instituted,  and  within  a  period  of  thirty  years 
after  Bracton,  the  two  juries  were  separate  and  distinct  in  cases 
involving  life  at  least.112 

In  the  three  decades  following  the  writing  of  Bracton's 
treatise,  the  accusing  body  suffered  marked  changes  which  are 
revealed  by  the  pages  of  Britton.  The  number  still  continued 
at  twelve,  the  method  of  summoning  and  organizing  them  was 
the  same,  but  they  now  took  this  oath :  "that  they  will  lawful 
presentment  make  of  such  chapters  as  shall  be  delivered  to  them 
in  writing  and  in  this  they  will  not  fail  for  any  love,  hatred, 
fear,  reward,  or  promise,  and  that  they  will  conceal  the  secrets, 
so  help  them  God  and  the  Saints."113  The  presentments  were 
made  in  writing  and  indented,  the  inquest  keeping  one  part,  the 
other  being  delivered  to  the  justices.114  An  indictor  could  not 
serve  upon  the  petit  jury  in  offences  punishable  with  death,  if 
challenged  by  the  defendant.115  The  inquest  was  required  to 
present  those  whose  duty  it  was  to  keep  in  repair  bridges, 
causeways,  and  highways,  for  neglect  of  duty;116  to  inquire 
into  the  defects  of  gaols  and  the  nature  thereof,  who  ought  to 
repair  them,  and  who  was  responsible  for  any  escapes  which 
had  occurred  ;117  if  any  sheriff  had  kept  in  gaol  those  whom  he 
should  have  brought  before  the  justices;118  and  of  all  cases 
where  the  sheriff  placed  on  the  panel  persons  holding  under 
"twenty  shillings  to  be  on  inquests  and  juries  in  the  county."119 

The  inquest  now  corresponded,  in  general,  with  the  modern 

in  Select  Pleas  of  the  Crown  (Selden  Society)  Case  No.  157. 

112  Britton  (Legal  Classic  Series)  25. 

113  Britton  (Legal  Classic  Series)  17. 

114  Id.  p.  19. 

115  Id.  p.  25. 

116  Id.  p.  65. 

117  Id.  p.  72. 

118  Id.  p.  74. 

119  Id.  p.  75. 


26  THE  GRAND  JURY. 

inquest  except  in  point  of  number.  We  find  this  change  taking 
place  in  the  time  of  Edward  the  Third,  when  the  sheriff  of  the 
county,  in  addition  to  the  twelve  returned  by  the  bailiffs  for 
each  hundred,  returned  a  panel  of  twenty-four  knights  to  in- 
quire at  large  for  the  county,  and  this  body  was  termed  "/<? 
graunde  inquest  "not  for  the  purpose  of  distinguishing  it  as  the 
accusing  body,  but  to  distinguish  it  from  the  hundred  inquests. 
This  grand  inquest  seems  to  have  its  foundation  solely  in  the 
action  of  the  sheriff  in  returning  such  a  panel,120  for  it  was 
authorized  by  no  statute,  and  apparently  had  no  existence  in 
prior  custom.  It,  however,  was  destined  to  be  permanent  by 
reason  of  its  jurisdiction  over  the  entire  county  and  the  fact 
that  its  number  of  twenty-four  was  less  unwieldy  than  the 
twelves  of  the  many  hundreds  in  the  county. 

Consequently  while  the  influence  of  "le  graunde  inquest' 
grew,  that  of  the  hundred  inquests  declined,  until  finally  they 
ceased  to  present  offenders  and  filled  the  office  of  petit  jurors 
only.121  While  we  therefore  see  that  the  beginning  of  the 
"grand  jury"  as  known  to  us,  occurs  in  time  within  the  mind  of 
man,  it  is  plain  that  this  was  but  the  new  branch  of  a  tree  al- 
ready firmly  rooted  among  English  institutions.  It  was  dis- 
tinctly a  growth  produced  by  the  necessities  of  the  times  to 
which  its  origin  relates,  and  would  no  more  have  been  a  delib- 
erate creation  of  a  Parliament  of  the  fourteenth  century  than 
it  would  of  the  legislature  to-day.  Nor  did  this  change,  which 
was  apparently  without  warrant  of  law,  materially  alter  the  an- 
cient institution.  The  necessity  that  twelve  should  concur  re- 
mained, and  to-day  in  England  and  all  of  the  states  which 
have  not  by  statute  provided  otherwise,  twelve  jurors  are  all 
that  need  be  present  upon  the  grand  jury,  but  all  must  con- 
cur.122 The  increase  in  the  number  of  jurors  having  occurred 
in  a  period  when  unanimity  was  requisite,  if  the  increased  num- 
ber was  authorized  by  law,  undoubtedly  the  same  principle, 
which  required  twelve  jurors  or  twelve  or  even  thirty-six  com- 

120  King  v.  Fitch,  Cro.  Chas.  414.    In  this  case  it  is  said  that  "it  is  usual 
to  have  more  than  twelve  at  the  sheriff's  pleasure"  on  an  inquest  of  office. 

121  3  Reeves  Hist.  Eng.  Law  133. 

122  Post  45,  46,  147- 


ITS  ORIGIN,   HISTORY 

^ 

purgators   (in  such  instances  as  compur] 
lowed)  to  concur,  must  necessarily  have  reqi 
four  on  the  grand  inquest  to  do  likewise.     That 
required  makes  it  quite  probable  that  all  over 
lawfully  upon  the  panel.123 

With  the  coming  of  the  grand  inquest  to  inquire  at  large^ 
the  county,  and  the  disappearance  of  the  accusing  bodies  of  the> 
hundreds,  we  practically  complete  what  may  be  termed  the  per- 
iod of  formation  in  the  development  of  the  grand  jury.  So  far 
as  we  have  considered  it,  we  have  found  it  to  be  an  arm  of  the 
government,  acting  as  a  public  prosecutor  for  the  purpose  of 
ferreting  out  all  crime,  the  members  of  the  inquest  being  at  all 
times  bound  to  inform  the  court  either  singly  or  collectively 
their  reasons  for  arriving  at  their  verdict  and  the  evidence  upon 
which  it  was  based.  124The  seed,  however,  had  been  sown  in 
Bracton's  time,  which  was  destined  to  change  the  grand  jury 
from  a  mere  instrument  of  the  crown  to  a  strong  independent 
power  which  stood  steadfast  between  the  crown  and  the  people 
in  the  defence  of  the  liberty  of  the  citizen. 

In  enjoining  secrecy  upon  the  inquest  in  Bracton's  time,  and 
in  making  it  a  part  of  the  grand  juror's  oath  as  shown  by  Brit- 
ton,125  it  was  perhaps  the  idea  of  the  crown  that  such  a  regula- 
tion would  prevent  knowledge  of  the  action  of  the  inquest  from 
being  conveyed  to  the  defendant  to  allow  his  escape.  That  it 
was  for  no  other  purpose  will  be  seen  by  the  fact  that  the  jus- 
tices might  still  fully  interrogate  the  jurors  as  to  how  they 
arrived  at  their  verdict.128  The  power  of  interrogation  does 
not  appear  to  have  been  exercised  by  the  justices  in  all  cases, 
but  only  in  such  instances  as  the  jury  presented  upon  suspicion 
and  the  defendant  must  purge  himself  by  the  ordeal,  although 
this  practice  continued  after  the  ordeal  was  abolished.  When 
the  separate  trial  jury  became  finally  established,  there  no 
longer  existed  any  necessity  for  the  justices  to  inquire  of  the 
presenting  jury,  for  the  ordeal  no  longer  existed,  while  the 

123  Supra.  26. 

124  Supra.  21.    And  see  Forsyth  Trial  by  Jury  171. 

125  Britton   (Legal  Classic  Series)   18. 

126  Bracton-de  legibus,  (Sir  Travers  Twiss  ed.)  Vol.  II,  p.  455. 


28  THE  GRAND  JURY. 

truth  of  the  matter  was  fully  inquired  of  by  the  country. 
Further  than  this,  it  was  more  logical  that  the  justices  should 
make  inquiry  of  the  trial  jurors  whose  competency  rested  upon 
their  knowledge  of  the  truth  rather  than  the  presenters,  whose 
accusation  neither  determined  the  truth  nor  falsity  of  the 
charge  and  was  not  conclusive  as  in  Glanville's  time.  When 
the  grand  inquest  came  to  present  for  the  county,  their  personal 
knowledge  of  the  facts,  in  most  cases,  became  more  limited,  and 
the  practice  at  this  time  of  requiring  the  grand  inquest  to  di- 
vulge upon  what  ground  their  presentment  was  based,  had 
probably  fallen  into  disuse. 

It  was  in  this  period  that  the  independence  of  the  grand  jury 
became  established.  No  longer  required  to  make  known  to  the 
court  the  evidence  upon  which  they  acted,  meeting  in  secret  and 
sworn  to  keep  their  proceedings  secret  by  an  oath  which  con- 
tained no  reservation  in  favor  of  the  government,  selected  from 
the  gentlemen  of  the  best  figure  in  the  county,127  and  without 
regard  to  their  knowledge  of  any  particular  offence,  the  three 
centuries  that  followed  the  return  of  a  panel  of  twenty-four 
knights,  witnessed  its  freedom  of  action  from  all  restraint  by 
the  court.  The  independence  which  the  institution  had  at- 
tained was  soon  to  be  put  to  the  severest  tests,  but  protected  by 
the  cloak  of  secrecy  and  free  from  the  control  of  the  court  as 
to  their  findings,  they  successfully  thwarted  the  unjust  designs 
of  the  government. 

It  was  in  the  reign  of  Charles  the  Second  that  we  find  the 
two  most  celebrated  instances  of  the  fearless  action  of  the 
grand  jury  in  defending  the  liberty  of  the  subject,  although 
subjected  to  the  strongest  possible  pressure  from  the  crown. 
In  1 68 1  a  bill  of  indictment  for  high  treason  against  Stephen 
College,  the  Protestant  joiner,  was  submitted  to  a  grand  jury 
of  the  City  of  London.  Lord  Chief  Justice  North  compelled 
the  grand  jury  to  hear  the  evidence  in  open  court  and  of  the 
witnesses  produced  it  was  said,  "It  is  certainly  true  that  never 
men  swore  more  firmly  in  court  than  they  did."  The  grand 
jury  demanded  that  the  witnesses  be  sent  to  them  that  they 
might  examine  them  privately  and  apart,  which  the  court  per- 

127  4  Bl.  Com.  302. 


ITS  ORIGIN,   HISTORY  AND  DEVELOPMENT.  2Q 

mitted  to  be  done.  After  considering  the  matter  for  several 
hours  the  grand  jury  ignored  the  bill.  Upon  being  asked  by 
the  Lord  Chief  Justice  whether  they  would  give  a  reason  for 
this  verdict,  they  replied  that  they  had  given  their  verdict  ac- 
cording to  their  consciences  and  would  stand  by  it.128  The 
foreman  of  this  grand  jury,  Mr.  Wilmore,  was  afterwards 
apprehended  upon  a  false  charge,  examined  before  the  Council, 
sent  to  the  tower,  and  afterward  forced  to  flee  beyond  the 
seas.129 

In  the  same  year  an  attempt  was  made  to  indict  the  Earl  of 
Shaftesbury  for  high  treason.130  As  in  College's  case,  the 
grand  jury  desired  to  hear  the  evidence  in  private,  but  the 
king's  counsel  insisted  that  the  evidence  be  heard  in  open 
court  and  Lord  Chief  Justice  Pemberton  assented.  After 
hearing  the  evidence  the  grand  jury  desired  that  they  might 
examine  the  witnesses  apart  in  their  chamber  and  the  court 
granted  the  request.  After  again  hearing  the  witnesses  and 
considering  their  verdict  they  returned  the  bill  "ignoramus," 
upon  which  "the  people  fell  a  hollowing  and  a  shouting."  This 
case  is  perhaps  pointed  out  more  often  than  any  other  as  an  in- 
stance of  the  independent  action  of  the  grand  jury,  and  while 
it  is  not  sought  to  minimize  the  action  of  the  grand  jurors,  for 
their  stand  was  a  bold  one  in  view  of  the  strong  pressure  which 
was  brought  to  bear  upon  them  by  the  crown,  still  the  side 
lights  when  thrown  upon  it  disclose  other  facts  which  may  have 
been  potent  in  shaping  the  return  of  this  body.131  The  Earl 
of  Shaftesbury  was  a  very  powerful  nobleman,  with  influential 
friends  and  adherents  in  the  king's  service,  but  his  greatest 
strength,  perhaps,  lay  in  the  regard  in  which  he  was  held  by  the 
people.  The  sheriff  who  returned  the  grand  jurors  before 
whom  the  case  was  laid,  was  an  open  adherent  of  Shaftesbury, 


128  Growth  of  the  Grand  Jury  System,  (J.  Kinghorn),  6  Law  Mag.  & 
Rev.  (4th  S.)  375.    Note  to  College's  Trial,  8  How.  State  Tr.  549, 

129  Growth  of  the  Grand  Jury  System,  (J.  Kinghorn)  6  Law  Mag.  & 
Rev.   (4th  S.)    373- 

130  8  How.  St.  Tr.  774. 

131  For  an  interesting  discussion  of  this  ignoramus  see  Hallam's  Const 
Hist  England,  Vol.  II,  p.  202  et  seq. 


3O  THE  GRAND  JURY. 

and  it  is  reasonable  to  assume  that  the  panel  was  composed 
wholly  of  those  whose  sympathies  were  inclined  toward  the 
Earl.132  It  is  not  strange,  therefore,  that  the  proceeding  by 
the  crown  should  meet  with  an  ignominious  defeat. 

It  was  by  reason  of  the  failure  of  the  crown  to  coerce  grand 
juries  to  its  oppressive  purpose,  that  the  king's  officials  sought 
a  method  whereby  justice  might  be  dispensed  with  results  more 
agreeable  to  their  royal  master.  The  statute  of  3  Henry  VIII, 
C.  12,  provided  that  the  judges  and  justices  should  have  power 
to  reform  the  panel  by  taking  out  the  names  of  improper  per- 
sons and  putting  in  others  according  to  their  discretion,  and  the 
sheriff  was  then  bound  to  return  the  panel  as  reformed.  This 
statute  was  enacted  by  reason  of  the  abuse  by  the  sheriffs  of 
their  power  in  the  selection  and  returning  of  grand  jurors  re- 
sulting in -packing  the  panels  with  those  who  would  carry  out 
the  nefarious  designs  of  the  sheriff  and  those  with  whom  he 
might  be  acting.133 

This  statute,  Sir  Robert  Sawyer,  the  attorney  general, 
sought  to  employ  to  carry  out  the  wishes  of  the  crown.  The 
Court  of  Sessions  endeavored  to  compel  the  sheriffs  to  return 
the  panels  as  they  directed,  but  the  sheriffs  refused.  The  king 
thereupon  ordered  that  all  the  judges  should  attend  on  a  cer- 
tain day  at  the  Old  Bailey.  Here  the  same  proceeding  was  de- 
sired to  be  had,  but  the  sheriffs  demurred  and  desired  to  consult 
counsel.  The  court,  however,  urged  that  as  all  the  judges 
were  agreed  as  to  such  being  the  law,  there  could  be  no  neces- 
sity for  them  to  consult  counsel,  and  thereupon  the  sheriffs  re- 


132  Earl  of  Shaftesbury's  Case,  8  How.  St.  Tr.  775.    The  following  ex- 
cerpt from  the  report  of  the  proceedings  shows  the  attitude  of  the  sheriff 
toward  the  Earl : 

Sheriff  P.  I  desire  the  witnesses  may  be  kept  out  of  court,  and  called 
one  by  one. 

L.  C.  J.  It  is  a  thing  certainly,  the  king's  counsel  will  not  be  afraid  of 
doing;  but  sheriffs  do  not  use  to  move  anything  of  this  nature  in  court, 
and  therefore  'tis  not  your  duty,  Mr.  Sheriff,  to  meddle  with  it. 

Sheriff  P.     It  was  my  duty  last  time  my  lord,  and  appointed. 

Att.  Gen.  (Sir  Robert  Sawyer).  You  were  acquainted  'twas  not  your 
duty  last  time,  and  you  appear  against  the  king. 

133  4  Reeves  Hist.  Eng.  Law  298. 


ITS  ORIGIN,   HISTORY  AND  DEVELOPMENT.  3! 

turned  the  panel  as  directed.134  Whatever  change  this  may 
have  produced  in  the  success  of  state  prosecutions,  was  in  any 
event  destined  to  be  short  lived,  for  the  reign  of  Charles  the 
Second  ended  four  years  later,  his  successor,  James  the  Sec- 
ond, fled  to  France  in  1688,  and  William  of  Orange  ascended 
the  throne  and  a  more  liberal  policy  of  state  has  since  ensued. 

One  of  the  last  known  instances  of  the  court  attempting  to 
coerce  a  grand  jury  occurred  in  1783,  in  Pennsylvania.  Mr. 
Oswald,  the  printer  of  the  Independent  Gazette,  criticised  the 
conduct  of  the  Supreme  Court.  The  justices  thereof,  Chief 
Justice  McKean  and  Judge  Bryan  ordered  him  to  be  indicted 
for  libel,  but  the  grand  jury  ignored  the  bill.  The  judges  se- 
verely reproved  them  in  open  court  in  an  attempt  to  overawe 
the  inquest  and  sent  them  back  to  reconsider  the  bill,  but  the 
jury  refused  to  return  an  indictment.135 

When  the  settlement  of  America  was  begun  by  Englishmen, 
they  brought  with  them  all  the  civil  rights  which  they  enjoyed 
in  their  native  land,  and  with  them  came  the  grand  jury.138 

134  North's  Examen  Part  3,  Chap.  8.     Growth  of  the  Grand  Jury  Sys- 
tem, (J.  Kinghorn),  6  Law  Mag.  &  Rev.  (4th  S.)  376. 

135  Francis  Hopkinson's  Works,  Vol.  i,  p.  194.    In  Mississippi  in  1902, 
in  the  case  of  Blau  v.  State,  34  So.  153,  will  be  found  an  instance  where 
the  Court  successfully  coerced  the  grand  jury  into  finding  a  true  bill.    A 
motion  to  quash  was  overruled.     On  appeal  the  judgment  was  reversed 
upon  the  ground  of  the  improper  influence  exercised  over  the  grand  jury  in 
the  finding  of  the  indictment. 

136  Lesser  Hist.  Jury  System   128.    Details  of  the  earliest  use  of  the 
grand  jury  in  the  American  Colonies  are  few  and  very  unsatisfactory.    In 
the  New  Haven  colony,  theocratic  notions  caused  the  inhabitants  to  dis- 
pense with  trial  by  jury  because  no  precedent  for  it  could  be  found  in  the 
laws  of  Moses.     Fiske — Beginnings  of  New  England  314.     In  Boston  in 
1644,  a  certain  Captain  Keayne  was  tried  for  larceny  by  a  jury  and  ac- 
quitted:    Id.  129;  while  in  Plymouth  in  1651,  a  grand  jury  presented  one 
Holmes    for   holding   a    disorderly   meeting;    Id.    218.     In    Pennsylvania, 
the     early     cases     in     which     reference     to     a     grand     jury     is     made, 
have   been   collected  by   Hon.    Samuel   W.    Pennypacker,   in   an   address 
entitled  Pennsylvania  Colonial  Cases.     The  first  case  cited  is  that  of  the 
Proprietor  v.  Charles  Pickering,  and  arose  in  August,  1683:  Pennsylvania 
Colonial  Cases,  p.  32.    The  case  of  Proprietor  v.  Mattson  was  founded  upon 
an  indictment  by  the  grand  jury  charging  the  defendant  with  witchcraft: 
Id.  p.  35.    Two  presentments  by  the  grand  jury  in  1685  called  attention  to 


32  THE  GRAND  JURY. 

The  institutions  which  they  brought,  naturally  flourished  in  a 
land  so  far  away  from  the  mother  country,  and  consequently 
removed  from  the  attacks  which  were  subsequently  made  by 
the  crown  upon  the  liberties  of  the  people.  For  nearly  one 
hundred  years  the  colonies  were  allowed  to  exercise  to  the 
fullest  extent  a  greater  degree  of  civil  rights  than  at  any  time 
had  been  permitted  to  the  subject  in  England.  The  only  re- 
straint placed  upon  them  was  by  the  appointment  of  royal 
governors,  but  even  then  there  were  no  state  prosecutions  like 
those  being  carried  on  in  the  mother  country.  Free  from  re- 
straints which  were  there  placed  upon  them,  it  was  most  natural 
that  the  grand  jury  should  exercise  their  great  power  in  a  man- 
ner most  calculated  to  insure  the  liberty  and  freedom  of  thought 
of  the  people.  In  New  York  in  1735,  an  attempt  was  made  to 
indict  John  Peter  Zenger,  the  editor  and  proprietor  of  a  news- 
paper called  the  Weekly  Journal,  for  libel  because  of  the  man- 
ner in  which  he  held  up  to  scorn  the  deeds  of  the  royal  gov- 
ernor, but  the  grand  jury  ignored  the  bill.  He  was  then  pro- 
ceeded against  by  an  information  filed  by  the  attorney  general 
for  the  province,  and  after  a  trial  in  which  he  was  defended  by 
the  Philadelphia  lawyer,  Andrew  Hamilton,  was  triumphantly 
acquitted.137 

The  Constitution  of  the  United  States,  as  adopted  by  the 
states,  contained  no  guaranty  of  presentment  or  indictment  by 
a  grand  jury,  but  this  omission  was  remedied  by  the  passing  of 
the  first  ten  amendments,  substantially  a  bill  of  rights,  of  which 
Article  V  provides :  "No  person  shall  be  held  to  answer  for  a 
capital  or  otherwise  infamous  crime,  unless  on  a  presentment 
or  indictment  of  a  grand  jury,  except  in  cases  arising  in  the 

various  public  evils  and  suggested  certain  public  improvements:  Id.  p.  71- 
72.  In  the  case  of  Peter  and  Bridgett  Cock  v.  John  Rambo,  the  indictment, 
which  was  found  in  1685,  is  reproduced  entire.  This  indictment  seems  to 
have  been  read  to  the  grand  jury  in  open  court  at  the  request  of  counsel 
for  the  prosecution.  The  finding  thereon  was  "Wee  find  this  bill.  John  King, 
foreman."  Id.  p.  79.  In  1703,  in  Pennsylvania,  a  grand  jury  presented  a 
number  of  individuals  for  various  offences :  Watson's  Annals  of  Philadel- 
phia, Vol.  I,  p.  308;  Fiske — The  Dutch  and  Quaker  Colonies  in  America, 
Vol.  II,  p.  382. 

137  The  Dutch  and  Quaker  Colonies  (John  Fiske),  Vol.  II,  pp.  290-299. 


ITS  ORIGIN,    HISTORY  AND  DEVELOPMENT.  33 

land  or  naval  forces,138  or  in  the  militia  when  in  actual  service 
in  time  of  war  or  public  danger ;".... 

This  provision  applies  solely  to  offences  against  the  United 
States  and  triable  in  the  United  States  Courts,139  and  has  refer- 
ence not  only  to  those  offences  which  at  common  law  were 
capital  or  infamous,  but  to  such  as  might  thereafter  be  made 
capital  or  infamous  by  legislation  of  Congress.140  It  has  been 
held  not  to  affect  prosecutions  brought  by  means  of  an  infor- 
mation filed  by  the  United  States  District  Attorney  in  cases 
where  the  offence  does  not  constitute  a  capital  or  otherwise  in- 
famous crime.141  In  this  respect  the  Constitution  of  the 
United  States  assures  to  the  citizen  the  same  protection  to  his 
liberty  which  the  laws  of  England  afford  to  the  subjects  of  the 
king. 

The  Fourteenth  Amendment  does  not  require  the  states  to 
prosecute  crimes  by  means  of  indictment  or  prohibit  them  from 
proceeding  by  information.  The  provision  "due  process  of 
law"  refers  only  to  the  prosecution  of  offences  by  regular  judi- 
cial proceedings.142 

It  has,  therefore,  become  usual  both  in  England  and  the 
United  States  to  proceed  by  information  where  the  law  gives 
that  right,  and  has  frequently  been  employed  in  cases  where  a 
bill  has  been  submitted  to,  and  ignored  by,  a  grand  jury. 

The  Constitution  of  Pennsylvania  affords  a  still  greater  pro- 

138  See  Ex  Parte  Wildman,  29  Fed.  Cas.  1232. 

139  Hurtado  v.  California,  no  U.  S.  516;  Bollyn  v.  Nebraska,  176  U.  S. 
83;  Twitchell  v.  Com.  7  Wall  (U.  S.)  321;  Noles  v.  State,  24  Ala.  672; 
State  v.  Wells,  46  Iowa,  662 ;  State  v.  Barnett,  3  Kan.  250 ;  State  v.  Jackson, 
21  La.  Ann.  574;  Jackson  v.  Wood,  2  Cow.  (N.  Y.),  819;  Prescott  v.  State, 
19  Ohio,  184 ;  State  v.  Shumpert,  i  S.  C,  85 ;  Pitner  v.  State,  23  Tex.  App. 
366;  State  v.  Keyes,  8  Vt.,  57;  State  v.  Nordstrom,  7  Wash.,  506;  State  r. 
Baldwin,  15  Wash.,  15.    The  powers  of  local  government  exercised  by  the 
Cherokee  Nation  are  local  powers,  not  created  by  the  Constitution,  and 
hence  are  not  operated  upon  by  Amendment  V  thereof,  requiring  a  pre- 
sentment by  a  grand  jury  in  the  case  of  a  capital  or  other  infamous  crime; 
Talton  v.  Mayes,  163  U.  S.,  376. 

140  U.  S.  v.  Brady,  3  Cr.  Law  Mag.  69. 

141  Mackin  v.  U.  S.,  117  U.  S.  328;  Ex  Parte  Wilson,  114  U.  S.  417. 

142  Hurtado  v.  California,  no  U.  S.  516;  Kalloch  v.  Superior  Court,  56 
Calif.  229 ;  Rowan  v.  State,  30  Wis.  129. 

3 


34  THE  GRAND  JURY. 

tection  to  the  liberty  of  the  citizen.  Section  10  of  the  Declara- 
tion of  Rights  provides:  "No  person  shall  for  any  indictable 
offence,  be  proceeded  against  criminally,  by  information,  ex- 
cept in  cases  arising  in  the  land  or  naval  forces  or  in  the  militia 
when  in  actual  service  in  time  of  war  or  public  danger,  or  by 
leave  of  the  court  for  oppression  or  misdemeanor  in  office." 

As  all  offences  are  indictable  offences  in  Pennsylvania,  the 
filing  of  an  information  has  been  very  rarely  employed,  by  rea- 
son of  the  limited  class  of  cases  to  which  it  can  be  applied.  The 
nature  of  this  proceeding  received  judicial  construction  in  an 
early  Pennsylvania  case143  decided  by  Mr.  Justice  Shippen,  who 
delivered  the  following  opinion :  "The  present  is  the  first  in- 
stance, that  we  recollect,  of  an  application  of  this  kind  in  Penn- 
sylvania ;  and  on  opening  the  case,  it  struck  us  to  be  within  the 
loth  section  of  the  ninth  article  of  the  constitution,  which  de- 
clares that  no  person  shall  for  any  indictable  offense,  be  pro- 
ceeded against  criminally  by  information,  except  in  cases  that 
are  not  involved  in  the  present  motion.  But,  on  consideration, 
it  is  evident  that  the  constitution  refers  to  informations,  as  a 
form  of  prosecution,  to  punish  an  offender,  without  the  inter- 
vention of  a  grand  jury;  whereas  an  information,  in  the  nature 
of  a  writ  of  quo  warranto,  is  applied  to  the  mere  purpose  of 
trying  a  civil  right  and  ousting  the  wrongful  possessor  of  an 
office."  .... 

Under  the  same  statute  the  court  made  absolute  a  rule  for  an 
information  where  the  proceeding  was  against  a  justice  of  the 
peace  who  was  charged  with  a  misdemeanor  in  office  in  taking 
insufficient  bail.144  But  where  a  prosecutor  appeared  to  be 
proceeding  from  vexatious  motives,  the  court  discharged  the 
rule  for  an  information.145 

The  grand  jury  of  the  present  time  is  a  wholly  different  in- 
stitution  from  that  originated  by  the  Anglo-Saxons.  The  an- 
cient institution  was  designed  to  aid  the  government  in  detect- 
ing and  punishing  crime ;  the  tyranny  of  kings  made  it  an  in- 
strument to  defeat  the  government.  Now  it  occupies  the  ano- 


143  Res.  v.  Wray,  3  Ball.  (Pa.)  490. 

144  Res.  v.  Burns,  i  Yeates  (Pa.)  370. 

145  Res.  v.  Prior,  i  Yeates  (Pa.)  206. 


ITS  ORIGIN,   HISTORY  AND  DEVELOPMENT.  35 

malous  position  of  a  public  accuser,  while  at  the  same  time  it 
stands  as  a  defender  of  the  liberty  of  the  people. 

It  remains  to  consider  whether  or  not  the  grand  jury  is  wor- 
thy to  be  retained  among  the  institutions  of  a  free  government 
in  this  progressive  age.  The  institution  has  been  attacked  with 
great  vehemence  by  writers  of  acknowledged  ability,  both 
English  and  American,  but  at  the  same  time  it  has  been  de- 
fended with  equal  vigor  by  men  no  less  able.  That  the  insti- 
tution and  its  workings  are  open  to  criticism  no  one  will  ques- 
tion, but  that  the  defects  which  are  pointed  out  by  its  critics  nre 
of  such  a  nature  as  to  justify  its  abolition  cannot  be  so  readily 
conceded. 

The  attacks  upon  it  are  based  principally  on  three  grounds : 

1.  That  it  is  now  a  useless  institution. 

2.  Its  irresponsibility. 

3.  Its  secrecy  of  action. 

It  is  well  said  by  an  English  opponent  of  the  institution,146 
"ten  centuries  of  usage  give  a  very  striking  respectability  to 
any  institution;  ancl  grand  juries  existed  before  the  feudal  law 
and  have  survived  its  extinction.  They  are  perhaps  the  oldest 
of  existing  institutions;  but  if  they  are  to  continue,  they  must 
rest  on  their  continuing  utility,  not  on  their  antiquity,  for  fu- 
ture toleration." 

It  is  urged  with  great  earnestness  and  the  argument  contains 
much  merit  that  the  system  which  has  been  in  force  the  past 
three  hundred  years  of  giving  a  defendant  a  preliminary  hear- 
ing before  a  magistrate,  makes  the  work  of  the  grand  jury  in 
this  class  of  cases  superfluous.147  In  many  instances  this  argu- 
ment would  seem  to  be  well  founded,  since  the  finding  of  a 
true  bill  by  the  grand  jury  in  cases  returned  to  the  district  at- 
torney by  the  committing  magistrates  would  be  but  a  ratifica- 
tion of  the  action  of  the  magistrate,  but  it  is  not  true  in  all 
cases.  There  are  many  cases  of  a  trifling  nature  which  are  re- 
turned by  the  committing  magistrates  and  when  brought  be- 
fore the  grand  jury  the  indictments  are  ignored.  In  counties 
where  the  volume  of  business  is  small,  it  would  be  of  little  con- 

146  Grand  Juries  29  L.  T.  21. 

147  Bentham— Rationale  of  Judicial  Evidence,  Vol.  II,  p.  312. 


36  THE  GRAND  JURY. 

sequence  if  the  grand  jury  found  true  bills  even  in  these  cases, 
but  in  counties  where  the  volume  of  business  is  large,  and  this 
is  particularly  true  of  the  great  cities  which  frequently  are  co- 
extensive with  the  boundaries  of  the  county,  it  then  becomes  of 
vital  importance  that  there  should  be  a  tribunal  to  sift  from  the 
great  mass  of  cases  those  which  are  too  trifling  in  their  nature 
to  require  further  prosecution.  And  this  is  a  duty  which  could 
not  well  devolve  upon  a  single  officer,  for  unless  testimony  was 
heard  by  him  there  would  be  no  feasable  way  to  determine 
which  cases  should  be  prosecuted  and  which  should  be  ignored. 
If  evidence  is  therefore  to  be  heard,  it  is  wiser  that  it  be  heard 
and  considered  by  a  body  impartially  selected  from  the  people, 
than  by  a  single  officer  whose  training  would  incline  him  to 
find  those  grounds  upon  which  the  prosecution  might  be  sus- 
tained. 

While  in  ignoring  bills  of  indictment  it  frequently  happens 
that  defendants  are  set  free  who  undoubtedly  merit  punishment, 
it  is  idle  to  charge  that  this  is  a  defect  in  the  system  or  a  reason 
why  it  should  be  abolished,  for  the  same  result  is  of  frequent 
occurrence  where  defendants  are  tried  before  petit  juries, 
when  the  evidence  is  heard  in  open  court.  If,  when  the  grand 
jurors  hear  only  the  evidence  in  favor  of  a  prosecutor,  given  by 
witnesses  summoned  by  the  district  attorney,  and  examined  by 
him  before  the  grand  jury,  they  are  unable  to  return  a  true  bill, 
how  can  it  reasonably  be  asserted  that  a  petit  jury,  where  the 
entire  twelve  must  concur,  would  have  found  the  defendant 
guilty  when  the  grand  jury,  which  usually  exceeds  this  num- 
ber, are  unable  to  muster  twelve  who  concur  in  finding  the  bill. 
To  charge  a  grand  jury  with  failure  to  act  in  furtherance  of 
justice,  under  such  circumstances,  is  an  unwarranted  imputa- 
tion upon  the  judgment  of  intelligent  men  and  is  only  made  by' 
writers  who  give  the  subject  a  superficial  consideration.148 
That  because  the  minority  view  the  evidence  in  a  different 

148  Hon.  Daniel  Davis,  Attorney  General  of  Massachusetts,  speaking  of 
his  own  experience  says :  "But  the  experience  of  thirty  years  furnishes 
an  answer  most  honorable  to  the  intelligence  and  integrity  of  that  body  of 
citizens  from  which  the  grand  jury  are  selected;  and  that  is,  that  they  al- 
most universally  decide  correctly :"  Precedents  of  Indictments,  p.  21. 


ITS  ORIGIN,   HISTORY  AND  DEVELOPMENT.  3/ 

light  from  the  majority  is  to  say  the  majority  have  come  to 
the  wrong  conclusion,  is  a  proposition  not  recognized  in  this 
country.  The  defendant,  no  matter  what  the  evidence  against 
him  may  be,  is  presumed  to  be  innocent  until  proven  guilty,  and 
if  the  prosecuting  officer,  with  all  the  power  he  possesses  within 
the  sealed  doors  of  the  grand  jury  room,  is  unable  to  convince 
twelve  out  of  those  present,  of  the  guilt  of  the  defendant,  he 
cannot  well  say  that  he  could  do  more  before  the  petit  jury, 
where  the  defendant  has  the  additional  advantages  of  counsel 
and  witnesses  in  his  defence,  and  a  trial  judge  who  may  be 
called  upon  to  rule  out  incompetent  and  irrelevant  evidence. 
There  are  undoubtedly  many  cases  in  which  true  bills  are  found 
where  incompetent  and  irrelevant  evidence  has  been  given  be- 
fore the  grand  jury  and  formed  the  inducement  to  their  action. 

The  fact  that  sometimes  they  indict  innocent  persons  is  to  be 
deplored,  but  as  an  argument  in  favor  of  the  abolition  of  the  in- 
stitution is  without  merit.  The  right  still  remains  for  such  de- 
fendant to  establish  his  innocence  before  a  petit  jury,  where  he 
is  aided  by  his  counsel  and  may  have  witnesses  in  his  behalf. 
If,  in  such  cases,  the  prosecution  was  by  information  filed  by 
the  district  attorney  upon  the  return  of  the  committing  magis- 
trate, there  would  be  no  possible  chance  of  the  innocent  de- 
fendant escaping  trial.  Primarily  the  object  of  the  grand  jury 
is  not  to  protect  the  innocent,  for  all  accused  persons  are  pre- 
sumed innocent  until  the  contrary  be  shown,  but  is  to  accuse 
those  persons,  who,  upon  the  evidence  submitted  by  the  prose- 
cutor, if  uncontradicted,  would  cause  the  grand  jurors  to  be- 
'ieve  the  defendant  guilty  of  the  offence  charged.149  When, 
therefore,  the  evidence  is  of  such  a  nature  as  to  justify  the  re- 
turn of  an  indictment  by  the  grand  jury,  it  is  only  proper  that 
whether  innocent  or  guilty,  the  accused  should  be  put  upon  his 
trial. 

It  is  true  that  the  grand  jury  ordinarily  do  but  little  more 
than  review  the  judgment  of  the  committing  magistrate,  and 
for  this  reason  the  institution  is  said  to  be  useless.  But  it  is 
eminently  fitting  that  such  a  body  should  exist  to  review  the 
judgment  of  such  magistrates.  It  is  absurd  to  contend  tlint 

149  Post  105,  141,  142. 


38  THE  GRAND  JURY. 

in  a  government  such  as  ours,  composed  of  a  system  of  checks 
and  balances,  a  committing  magistrate  is  an  individual  whose 
discretion  does  not  require  review.  They  are  chosen  as  a  rule 
from  men  who  have  but  little  knowledge  of  the  law  and  whose 
principal  qualification  is  the  political  service  rendered  to  their 
party  and  not  the  personal  fitness  of  the  individual  for  the 
office.  In  a  large  number  of  cases  the  warrant  will  be  issued 
by  a  magistrate,  known  either  to  the  prosecutor  or  his  counsel, 
who  invariably  is  selected  because  of  the  acquaintanceship. 
That  a  defendant  who  is  committed  or  held  in  bail  under  such 
circumstances  should  be  entitled  to  hare  the  judgment  of  the 
magistrate  reviewed  by  a  tribunal  sufficiently  large  and  without 
personal  interest  in  the  case,  is  but  a  reasonable  requirement. 
Not  that  the  magistrate  may  have  acted  improperly  or  violated 
the  terms  of  his  oath,  but  that  prosecutions  which  are  or  may 
have  been  begun  under  such  conditions,  shall  be  declared  by  an 
impartial  body  to  be  well  founded  in  fact  before  a  defendant 
shall  be  obliged  to  answer. 

An  English  writer150  discusses  the  subject  in  this  language: 
"The  criminal  who  has  been  committed  on  the  well  considered 
opinion  of  the  responsible  magistrate  is  set  at  large  by  the  in- 
fluence of  the  random  impressions  of  twenty-three  irresponsible 
gentlemen.  Such  an  enlargement  is  in  itself  a  slander  or  a 
serious  charge  against  the  committing  magistrate,  and  logically 
ought  to  be  almost  conclusive  evidence  of  his  unfitness  to  act 
either  from  malice  or  incapacity." 

The  English  system  of  committing  magistrates  is  of  a  some- 
what different  nature  from  that  of  Pennsylvania.  They  have 
there  what  are  known  as  stipendiary  magistrates,  that  is,  men 
who  are  paid  fixed  salaries  for  their  services,  but  are  required 
either  to  be  learned  in  the  law  or  to  be  accompanied  by  a  duly 
articled  clerk.151  If  the  logic  of  the  writer  above  quoted  is  to 
be  pursued  to  a  conclusion,  it  means  when  the  appellate  court 
reverses  the  court  below  that  that  is  conclusive  evidence  of  the 
unfitness  of  such  judge  to  fill  his  high  office,  notwithstanding 

150  Grand  Juries  29  L.  T.  21. 

151  Id. 


ITS  ORIGIN,   HISTORY  AND  DEVELOPMENT.  39 

he  has  adjudged  correctly  in  the  great  majority  of  cases  which 
have  come  before  him. 

If  it  be  said  the  cases  are  not  analogous  in  that  the  grand 
jurors  are  laymen  who  review  the  decision  of  a  magistrate 
learned  in  the  law,  it  may  be  answered  that  the  laymen  review 
not  the  law,  but  the  facts  of  the  case,  and  as  to  those  facts  all 
the  legal  learning  which  the  magistrate  may  possess  will  not 
make  him  a  better  judge  of  the  truth  of  the  facts  or  the  credi- 
bility of  the  witnesses.  As  to  the  facts,  he  is  but  one  layman 
against  twenty-three,  and  all  experience  has  taught  that  the  lat- 
ter body  are  far  more  apt  to  arrive  at  a  correct  conclusion. 
The  same  author  who  contends  that  the  judgment  of  the  sti- 
pendiary magistrate  is  superior  to  that  of  the  twenty-three 
grand  jurors  would  probably  repel  the  assertion  that  the  judge 
who  presides  at  the  trial  is  more  likely  to  arrive  at  a  correct 
conclusion  upon  disputed  facts  than  the  twelve  jurors  sworn  to 
pass  upon  them,  yet  the  two  cases  are  precisely  analogous. 
Upon  all  questions  of  fact,  the  composite  make-up  of  the  twelve 
or  the  twenty-three  vests  in  such  body  a  knowledge  which  no 
one  man  can  possess  and  is  more  productive  of  correct  findings. 
It  is  given  neither  to  one  man  nor  to  any  body  of  men  to  invar- 
iably arrive  at  correct  conclusions,  but  because  they  at  times 
may  err,  it  affords  no  ground  for  saying  that  by  reason  of  such 
error  they  are  either  ignorant,  malicious  or  incompetent. 

Upon  this  point  an  English  writer152  pertinently  remarks, 
"Moreover  the  stipendiary  magistrates  we  have  are  not  all  such 
oracles  of  wisdom  that  we  should  conclude  that  the  grand  jury 
must  always  be  wrong  and  the  magistrate  right  upon  the  ques- 
tion of  whether  there  is  a  prima  facie  case." 

It  is  thought  by  one  writer  that  the  grand  jury  is  a  useless 
institution  because  it  no  longer  occupies  its  original  position, 
and  by  reason  of  this  fact  should  be  abolished.163  Were  we  to 

152  Grand  Juries,  67  L.  T.  381. 

153  On  Grand  Juries,    (E.  E.   Meek)   85    Law    Times    395.      The  ab- 
surdity of  this  argument  is  brought  to    our    attention    in    the  case    of 
Hurtado   v.   California,  no  U.  S.  516,  in  which  it  was  contended  that  the 
words  "due  process  of  law"  as  used  in  the  Fourteenth  Amendment  to  thr 
Constitution  of  the  United  States  was  the  equivalent  of  the  phrase  "law 
of  the  land"  in  the  twenty-ninth  chapter  of  Magna  Charta  and  had  acquired 


4O  THE  GRAND  JURY. 

apply  this  reasoning  to  the  various  branches  of  the  law  at  the 
present  day,  to  our  courts,  our  institutions,  and  our  procedure, 
nearly  all  must  be  swept  away,  for  but  little  of  it  retains  its 
original  position.  Things  have  changed  with  the  progress  of 
the  centuries  and  it  is  the  height  of  absurdity  to  contend  that 
because  the  grand  jury  is  no  longer  a  power  in  the  hands  of 
unscrupulous  persons  to  oppress  those  who  hindered  or  inter- 
fered with  their  improper  designs  as  it  was  in  times  past,  it  no 
longer  occupies  its  original  position  and  should  be  cast  aside. 

That  the  grand  jury  is  an  irresponsible  body  is  admitted  and 
it  is  this  want  of  responsibility  which  the  opponents  of  the  in- 
stitution seize  eagerly  upon  in  their  endeavor  to  show  why  the 
institution  should  be  abolished.  An  American  writer154  thus 
expresses  his  views:  "The  principal  objection  which  can  be 
urged  against  the  grand  jury,  as  now  constituted,  is  the  abso- 
lute personal  irresponsibility  of  the  individual  juror  attendant 
upon  the  performance  of  his  duties.  He  is  a  law  unto  himself ; 
no  power  can  regulate  him  and  no  power  can  control  him.  He 
can  be  called  before  no  earthly  tribunal,  except  his  own  con- 
science, to  account  for  his  action.  He  can  pursue  an  enemy  for 
personal  motives  of  revenge ;  he  can  favor  a  friend  or  political 
associate ; he  can  advance  and  maintain  before  the  jury  by  argu- 
ment ideas  that  he  would  never  father  in  any  other  place;  he 
can  shirk  responsibility  by  voting  to  turn  the  guilty  loose,  plead- 
ing for  mercy  for  the  confessed  criminal  and  the  next  moment 


a  fixed,  definite,  and  technical  meaning ;  and  by  reason  of  this  amendment  a 
State  could  not  proceed  against  a  defendant  for  felony  except  upon  an  in- 
dictment found  by  a  grand  jury.  Mr.  Justice  Matthews  who  delivered 
the  opinion  of  the  Court  meets  this  argument  in  this  language :  "But  to  hold 
that  such  a  characteristic  is  essential  to  due  process  of  law  would  be  to  deny 
every  quality  of  the  law  but  its  age,  and  to  render  it  incapable  of  progress 
or  improvement.  It  would  be  to  stamp  upon  our  jurisprudence  the  un- 
changeableness  attributed  to  the  laws  of  the  Medes  and  Persians. 

"This  would  be  all  the  more  singular  and  surprising  in  this  quick  and 
active  age  when  we  consider  that,  owing  to  the  progressive  development  of 
legal  ideas  and  institutions  in  England,  the  words  of  Magna  Charta  stood 
for  very  different  things  at  the  time  of  the  separation  of  the  American  colo- 
nies from  what  they  represented  originally." 

154  The  Abolition  of  the  Grand  Jury,   (C.  E.  Chiperfield)   5  Am.  Law 
487. 


ITS  ORIGIN,   HISTORY  AND  DEVELOPMENT.  4! 

cast  his  vote  to  indict  the  innocent,  but  friendless  accused; 
ignoring  in  order  to  do  so  his  oath  and  every  distinction  be- 
tween hearsay  and  competent  evidence.  The  state's  attorney  is 
powerless  to  protest  against  or  prevent  these  insane  antics  upon 
the  juror's  part,  and  the  court  is  as  equally  unable  to  prevent 
the  denial  of  justice." 

Undoubtedly  it  is  within  the  power  of  a  grand  juror  to  act 
in  the  manner  thus  described,  and  that  this  is  sometimes  done 
will  hardly  be  questioned.  That,  however,  it  is  of  such  uni- 
versal occurrence  as  to  seriously  affect  the  administration  of 
justice  and  demand  the  abolition  of  the  institution  is  not  the 
fact.  To  contend  that  it  is,  is  to  say  that  on  every  grand  jury 
there  are  at  least  twelve  men  so  lost  to  all  sense  of  truth,  honor 
and  justice  and  so  utterly  oblivious  to  the  requirements  of  their 
oath,  that  they  will  perjure  themselves  in  order  to  do  the  will 
of  a  fellow  juror. 

We  have  only  to  turn  back  to  early  English  history  to  see 
how  the  grand  jury  was  so  used  for  improper  purposes  that  the 
statute  of  3  Henry  VIII,  C.  12,  was  enacted,  giving  to  the 
judges  and  justices  the  right  to  reform  the  panels  of  grand 
jurors  returned  by  the  sheriff,  and  .then  compelling  the  sheriff 
to  make  return  of  the  panel  so  reformed.  It  is  recited  by  the 
preamble  of  the  above  statute,155  "That  many  oppressions  had 
been,  by  the  untrue  demeanor  of  sheriffs  and  their  ministers, 
done  to  great  numbers  of  the  king's  subjects,  by  means  of  re- 
turning at  sessions  holden  for  the  bodies  of  shires,  the  names 
of  such  persons,  as  for  the  singular  advantage  of  the  said 
sheriffs  and  their  ministers ;  by  reason  whereof  many  substan- 
tial persons  (the  king's  true  subjects)  had  been  wrongfully  in- 
dicted of  divers  felonies  and  other  misbehaviour  by  their 
covin  and  falsehood ;  and  also  sometimes  Ly  labor  of  the  said 
sheriffs,  divers  great  felonies  had  been  concealed  and  not  pre- 
sented by  the  said  persons,  by  the  said  sheriffs  and  their  minis- 
ters partially  returned,  to  the  intent  to  compel  the  offenders  to 
make  fines,  and  give  rewards  to  the  said  sheriffs  and  their  min- 
isters." 

Lord  Coke156  also  directs  attention  to  this  evil  and  points 

155  Hawk.  PI.  C.  Book  2,  Ch.  25,  Sec.  32. 

156  Co.  Inst.,  Vol.  Ill,  p.  33. 


4~  THE  GRAND  JURY. 

out  the  statutory  remedy.  In  Scarlet's  case,157  one  Robert 
Scarlet  had  unlawfully  procured  himself  to  be  placed  upon  a 
panel  of  grand  jurors  and  caused  indictments  to  be  found 
against  innocent  persons.  The  court  suspected  that  some- 
thing was  wrong,  and  inquired  of  the  inquest  as  to  the  evidence 
upon  which  the  bills  had  been  found,  which  disclosed  the 
agency  of  Scarlet  and  brought  punishment  upon  him. 

At  the  present  day  it  cannot  justly  be  said  that  the  grand 
jury  is  wholly  irresponsible.  It  is  true  that  they  have  great 
freedom  of  action  and  the  reasons  which  induce  their  action 
cannot  be  inquired  into.158  But  if  they  have  acted  from  im- 
proper motives  or  been  improperly  influenced,  and  this  could 
not  be  made  to  appear  upon  a  motion  to  quash  the  indictment, 
it  is  still  within  the  power  of  the  district  attorney  with  leave 
of  court,  to  enter  a  nolle  pros  or  submit  the  bill,  without  trial, 
to  a  petit  jury  and  have  a  verdict  of  not  guilty  rendered 
thereon.  On  the  other  hand,  if  the  grand  jury  improperly  re- 
ject a  bill,  it  is  still  competent  for  the  district  attorney  to  lay 
the  matter  before  a  subsequent  grand  jury,  which  may  act 
otherwise.159  The  ability  of  the  grand  jurors  to  work  harm  by 
the  abuse  of  their  power  is,  therefore,  more  fancied  than  real. 

Nor  can  there  be  said  to  be  any  more  merit  in  the  complaint 
that  the  secrecy  surrounding  the  grand  jury  is  an  evil  which 
should  be  done  away  with.  They  deliberate  in  secret,  but  the 
petit  jury  does  likewise,  and  no  one  would  contend  for  a  mo- 
ment that  a  petit  jury  should  deliberate  in  public.  What  rea- 
son can  then  be  advanced  why  a  grand  jury  should  deliberate 
in  public?  Nor  would  the  hearing  of  the  testimony  in  public 
be  of  any  advantage  unless  counsel  for  the  defence  were  per- 
mitted to  cross-examine  the  witnesses  produced,  which  would 
necessitate  a  judge  being  present,  and  such  a  course  as  this 
would  neither  be  desirable  nor  productive  of  good.  If  the 
closed  doors  of  the  grand  jury  room  are  an  incentive  to  per- 
jury, the  witness  must  also  perjure  himself  before  the  petit 
jury  to  make  his  false  testimony  effective.  And  as  only  the 
witnesses  for  the  prosecution  are  heard,  it  is  very  unlikely  that 


157  12  Co.  98. 

158  Post  119,  166. 

159  Post  112,  152. 


ITS  ORIGIN,   HISTORY  AND  DEVELOPMENT.  43 

a  defendant  would  be  set  free  by  reason  of  the  prosecution's 
witnesses  committing  perjury  in  his  behalf. 

The  partisan  feeling  of  the  opponents  and  the  defenders  of 
the  grand  jury  usually  leads  them  into  violent  and  unwarranted 
condemnation  or  rash  and  extravagant  praise.  Chief  Justice 
Shaw,180  of  the  Supreme  Court  of  Massachusetts,  in  a  charge 
to  a  grand  jury  in  1832,  admirably  set  forth  the  conservative 
view  of  this  institution.  "In  a  free  and  popular  government," 
he  said,  "it  is  of  the  utmost  importance  to  the  peace  and  har- 
mony of  society,  not  only  that  the  administration  of  justice  and 
the  punishment  of  crimes  should  in  fact  be  impartial,  but  that  it 
should  be  so  conducted  as  to  inspire  a  general  confidence,  and 
that  it  will  and  must  be  so.  To  accomplish  this,  nothing  could 
be  better  contrived  than  a  selection  of  a  body,  considerably  nu- 
merous, by  lot,  from  amongst  those,  who  previously  and  with- 
out regard  to  time,  person,  or  occasion,  have  been  selected  from 
among  their  fellow  citizens,  as  persons  deemed  worthy  of  this 
high  trust  by  their  moral  worth,  and  general  respectability  of 
character.  And  although  under  peculiar  states  of  excitement, 
and  in  particular  instances,  in  making  this  original  selection, 
party  spirit,  or  sectarian  zeal  may  exert  their  influence,  yet  it 
can  hardly  be  expected  that  this  will  happen  so  frequently  or 
so  extensively,  as  seriously  to  affect  the  character  or  influence 
the  deliberations  of  grand  juries.  Should  this  ever  occur,  to 
an  extent  sufficient  to  weaken  the  confidence  now  reposed  in 
their  entire  impartiality,  and  thus  destroy  or  impair  the  utility 
of  this  noble  institution,  it  would  be  an  event,  than  which  none 
should  be  more  earnestly  deprecated  by  every  lover  of  impartial 
justice,  and  every  friend  of  free  government. 

"Were  the  important  function  of  accusation  placed  in  the 
hands  of  any  individual  officer,  however  elevated,  it  would  be 
difficult  to  avoid  the  suspicion  of  partiality  or  favoritism,  a  dis- 
position to  screen  the  guilty  or  persecute  the  innocent.  But  the 
grand  jury,  by  the  mode  of  its  selection,  by  its  number  and 
character,  and  the  temporary  exercise  of  its  powers,  is  placed 
beyond  the  reach  or  the  suspicion  of  fear  or  favor  of  being 
overawed  by  power  or  seduced  by  persuasion." 

160  Charge  to  Grand  Jury,  8  Am.  Jurist  216. 


44  THE  GRAND  JURY. 

In  some  of  the  Western  States  the  grand  jury  has  either  been 
abolished,  or  the  constitution  has  been  altered  to  permit  this  to 
be  done.161  In  California,  where  the  district  attorney  files 
an  information  in  all  cases  of  felony  and  misdemeanor,  the 
statutes  make  provision  for  a  grand  jury  and  confer  upon  it 
greater  inquisitorial  power  than  has  ever  been  conceded  to  it  in 
those  states  which  proceed  with  it  according  to  the  common 
law.162 

The  conservatism  of  the  Eastern  States  has  caused  the  reten- 
tion of  the  grand  jury  among  their  institutions.  Whether  the 
policy  of  those  states  which  have  abolished  it  is  a  wise  one  or 
not  cannot  yet  be  determined.  This  can  only  be  learned  after 
the  system  which  has  supplanted  it  has  stood  the  test  through 
the  coming  years  and  emerged  unscathed  and  with  honor  from 
great  crises.  But  when  it  is  proposed  to  turn  aside  from  a 
course  which  has  been  followed  for  centuries  to  new  and  un- 
tried methods,  the  warning  of  Judge  King163  applies  with  great 
force :  "Any  and  every  innovation  in  the  ancient  and  settled 
usages  of  the  common  law,  calculated  in  any  respect  to  weaken 
the  barriers  thrown  around  the  liberty  and  security  of  the  citi- 
zens, should  be  viewed  with  jealousy,  and  trusted  with  cau- 
tion." 


161  See  Constitutions  of  Colorado,  1876,  Art.  II,  Sec.  23;  Illinois,  1870, 
Art  II,  Sec.  8;  Indiana,  1851,  Art.  VII,  Sec.  17;  Nebraska,  1875,  Art.  I, 
Sec.  10.     See  Thompson  &  Merriam  on  Juries,  Sec.  471-2.     In  Michigan, 
How.  Ann.  St.,  Sec.  9554,  dispenses  with  grand  juries  unless  summoned 
by  the  order  of  the  judge.     See  People  v.  Reigel,  78  N.  W.,  1017.    As  to 
Montana,  see  State  v.  King,  24  Pac.,  265.     Grand  Juries  abolished  in  Kan- 
sas by  Act  of  Feb.  12,  1864,  Sec.  7,  and  see  Rice  v.  State,  3  Kan.  141.    In 
Minnesota  the  people,  by  a  large  majority  vote,  have  adopted  a  constitu- 
tional amendment  abolishing  the  grand  jury.     The  Literary  Digest,  Vol. 
3<>,  P.  50. 

162  See   Grand   Juries   in   the    United    States,    7    Law    Journal,   729. 
Penal     Code     Calif.,     Sec.     915-929.       The     Constitution    of     California, 
Art.  I,  Sec.  8,  provides :    "Offences  heretofore  required  to  be  prosecuted 
by  indictment,  shall  be  prosecuted  by  information,  after  examination  and 
commitment  by  a  magistrate,  or  by  indictment,  with  or  without  such  ex- 
amination and  commitment,  as  may  be  prescribed  by  law.     A  grand  jury 
shall  be  drawn  and  summoned  at  least  once  a  year  in  each  county." 

163  Case  of  Lloyd  and  Carpenter,  3  Clark  (Pa.)  188. 


PART   II 

ORGANIZATION  AND  QUALIFICATIONS. 

The  grand  jury  is  a  body  composed  of  not  less  than  twelve1 
and  not  more  than  twenty-three  persons;2  and  in  the  Federal 
courts  it  is  provided  by  Act  of  Congress  that  the  number  shall 
not  be  less  than  sixteen  nor  more  than  twenty-three.3  Twenty- 
four,  however,  are  summoned,  but  never  more  than  twenty- 
three  are  sworn,  lest  there  be  two  full  juries, one  of  whom  is  for 
finding  a  true  bill,  the  other  for  ignoring  it.4  Where  twenty- 
four  were  sworn  the  indictment  was  quashed,5  and  this  decis- 
ion is  undoubtedly  in  accord  with  the  reason  of  the  rule. 

If  twenty- four  are  sworn  and  serve  upon  the  panel,  then  the 
reason  of  the  rule  that  there  shall  not  be  two  full  juries  is  vio- 
lated, and  while  the  jurors  may  be  interrogated  as  to  whether 

1  Ostrander  v.  State,  18  Iowa,  435 ;  State  v.  Green,  66  Mo.,  631 ;  State  r. 
Clayton,  n  Rich.  Law  (S.  C.)  581;  Pybos  v.  State,  3  Humph.  (Tenn.)  49; 
State  v.  Kopp,  34  Kan.,  522 ;  State  v.  Brainerd,  56  Vt.,  532 ;  State  v.  Perry, 
29  S.  E.,  384.    The  record  must  show  that  the  grand  jury  consisted  of 
twelve  men  or  the  judgment  will  be  reversed.    Carpenter  v.  State,  4  How. 
(Miss.)  163. 

2  4  Bl.  Com.  302.     In  Utah  the  statute  provides  that  a  grand  jury  must 
consist  of  twenty-four.     Brannigan  v.  People,  3  Utah,  488. 

3  R.  S.  U.  S.  Sec.  808;  i  Whart.  Cr.  Laws,  Sec.  4633.     In  Reynolds  v. 
U.  S.,  98  U.  S.  145,  it  was  held  that  Sec.  808  of  the  Revised  Statutes  ap- 
plied only  to  circuit  and  district  courts  of  the  United  States;  territorial 
courts  being  governed  by  the  territorial  laws  then  in  force. 

4  i  Whart.  Cr.  Law,  Sec.  465,  (7th  ed.). 

5  People  v.  King,  2  Caines  (N.  Y.)  98;  Com.  v.  Salter,  2  Pears.  (Pa.) 
461;    Com.    v.    Leisenring,    Id.    466;    In   Com.    v.    Dietrich,   7    Pa.    Supr. 
Ct.  Rep.  515,  a  presentment  of  the  grand  jury  was  signed  by  the  twenty- 
four  grand  jurors,  but  this  question  was  not  raised  until  after  a  trial  on 
the  merits.     In  his  opinion,  Rice,  P.  J.,  says,  "Its  action  was  none  the  less 
valid  because  it  was  preceded  by  the  unanimous  presentment  of  a  former 
grand  jury."     See  King  v.  Marsh,  i  N.  &  P.  187. 

45 


46  THE  GRAND  JURY. 

twelve  concurred  in  finding  the  bill,  they  will  not  be  permitted 
to  make  known  how  many  either  voted  for  or  against  it.6  Tl.e 
law's  requirement  of  secrecy  concerning  the  manner  in  which 
the  grand  jury  acts,  therefore  makes  it  imperative  that  the  rea- 
son of  the  rule  be  adhered  to  strictly.  If  more  than  the  num- 
ber prescribed  by  law  are  sworn  on  the  grand  jury,  even  though 
all  be  regularly  drawn,  summoned  and  returned,  it  cannot  legal- 
ly act.7  All  on  the  panel  in  excess  of  the  legal  number  are  not 
bound  by  the  oath  and  their  presence  in  the  grand  jury  room 
destroys  its  secrecy  of  action,  and  will  vitiate  the  indictment. 
If  more  than  the  legal  number  of  grand  jurors  are  drawn,  sum- 
moned, empaneled  and  sworn,  but  only  the  legal  number  actual- 
ly serve,  the  defendant  will  in  no  manner  be  prejudiced  thereby 
and  an  indictment  found  by  such  grand  jury  will  be  sustained.8 
While  the  presence  of  more  than  the  maximum  number  of 
grand  jurors  will  invalidate  an  indictment,  the  presence  of 
less  than  the  minimum  number  will  not  always  work  this  re- 
sult9 unless  there  should  be  present  less  than  the  legal  number 
required  to  find  an  indictment.  The  general  rule  seems  to  be 
that  where  the  statute  specifies  a  certain  number  shall  consti- 
tute the  grand  jury  and  less  than  this  number  be  empaneled,  the 
grand  jury  is  illegally  constituted ;  but  if  the  legal  number  be 
empaneled  and  afterward  some  of  the  grand  jurors  absent 
themselves,  an  indictment  will  be  valid  if  found  by  the  number 
of  grand  jurors  required  to  concur  in  its  finding.10 

6  Post  118,  121,  166. 

7  Harding  v.  State,  22  Ark.  210;  People  v.  Thurston,  5  Calif.  69;  Keech 
v.  State,  15  Fla.  591 ;  Downs  v .  Com.  92  Ky.  605 ;  Com.  v.  Wood,  2  Cush. 
(Mass..)   149;  Miller  v.  State,  33  Miss.  356;  Box  v.  State,  34  Miss.  614; 
People  v.  King,  2  Caines  (N.  Y.)  98;  Com.  v.  Salter,  2  Pears  (Pa.)  461; 
Com.  v.  Leisenring,  Id.  466;  Lott  v.  State,  18  Tex.  App.  627;  Wells  v. 
State,  21  Id.  594 ;  Harrell  v.  State,  22  Id.  692 ;  Ex  Parte  Reynolds,  34  S.  W. 
120 ;  Ex  Parte  Ogle,  61  S.  W.  122 ;  Ogle  v .  State,  63  S.  W.  1009. 

8  Turner  v.  State,  78  Ga.  174;  Crimm  v.  Com.,  119  Mass.  326;  State  V. 
Watson,  104  N.  C.  735 ;  State  v.  Fee,  19  Wis.  562.     And  see  Wallis  v.  State, 
54  Ark.  611 ;  Leathers  v.  State,  26  Miss,  73. 

9  People  v.  Simmons,  119  Calif,  i ;  State  v.  Perry,  29  S.  E.  384.     But  see 
State  v.  Cooley,  75  N.  W.  729. 

10  Gladden  v.  State,  12  Fla.  562;  Straughan  v.  State,  16  Ark.  37;  In  re 
Wilson,  140  U.  S.  575.     And  see  Post  56,  147. 


ORGANIZATION  AND  QUALIFICATIONS.  47 

While  the  decisions  upon  this  point  are  by  no  means  uni- 
form, the  later  cases  hold  that  the  grand  jury  having  consisted 
of  the  prescribed  number  at  the  time  it  was  empaneled,  and 
thereby  was  a  lawful  body  when  formed,  it  remains  a  lawful 
body  thereafter  even  though  less  than  the  minimum  number 
remain,  provided  the  number  required  to  find  a  true  bill  are 
present  at  its  finding.  It  must  be  remembered,  however,  that 
this  question  can  only  present  itself  where  a  statute  has  been 
enacted  prescribing  the  minimum  number  of  grand  jurors 
necessary  to  form  a  legal  grand  jury  and  then  providing  that 
a  number  less  than  the  minimum  may  find  a  true  bill.  This 
question  could  not  arise  with  the  common  law  grand  jury. 
There  the  minimum  number  to  constitute  a  lawful  body  is  fixed 
at  twelve,  and  this  entire  number  must  concur  in  order  to  find  a 
true  bill.  If  less  than  the  minimum  in  such  case  be  present,  a 
bill  found  by  such  lesser  number  would  be  void. 

The  leading  case  upon  this  question  is  In  re  Wilson10* 
where  the  United  States  Supreme  Court  refused  to  discharge 
upon  a  writ  of  habeas  corpus  a  defendant  who  had  been  in- 
dicted by  a  grand  jury  consisting  of  fifteen  persons,  twelve 
concurring,  where  the  statute  provided  that  the  grand  jury 
should  consist  of  not  less  than  seventeen  nor  more  than  twenty- 
three,  and  requiring  only  the  concurrence  of  twelve  for  the 
finding  of  a  true  bill.  Mr.  Justice  Brewer,  who  delivered  the 
opinion  of  the  court  in  this  case  says : 

"By  petitioner's  argument,  if  there  had  been  two  more  grand 
jurors  it  would  have  been  a  legal  body.  If  the  two  had  been 
present,  and  had  voted  against  the  indictment,  still  such  oppos- 
ing votes  would  not  have  prevented  its  finding  by  the  concur- 
rence of  the  twelve  who  did  in  fact  vote  in  its  f3.vor.  It  would 
seem,  therefore,  as  though  the  error  was  not  prejudicial  to  the 
substantial  rights  of  the  petitioner." 

The  manner  of  selecting  and  procuring  the  attendance  of 
grand  jurors  is  now  wholly  regulated  by  statute  in  the  various 
states.  While  the  statutes  differ  in  the  method  provided  for 
procuring  the  attendance  of  grand  jurors,  the  general  practice 
in  many  of  the  states  is  for  the  court  to  issue  an  order  or  pre- 

10*  In  re  Wilson,  140  U.  S.  575. 


48  THE  GRAND  JURY. 

cept11  to  the  proper  official12  directing  that  a  venire  issue13 
which  commands  the  persons  charged  with  such  duties14  to 
draw  and  summon  a  panel  of  grand  jurors.  The  venire  should 
be  under  the  seal  of  the  court,15  although  it  has  been  held  not 
to  be  void  when  issued  without  the  seal.16  If  it  is  improperly 
tested  the  writ  may  be  amended.17 

In  some  states  it  is  provided  by  statute  that  the  grand  jurors 
shall  be  drawn  or  summoned  at  a  certain  time  prior  to  the  ses- 
sion of  the  court.  Where  this  requirement  has  been  neglected 
or  disregarded  the  indictment  in  some  instances  has  been 

11  This    need   not   be    entered   of    record    unless    directed    by    statute: 
Mesmer  v.  Com.,  26  Gratt.  (Va.)  976.    A  verbal  order  is  sufficient;  U.  S.  v. 
Reed,  27  Fed  Cas.  727.  Where  an  indictment  is  found  by  a  grand  jury  sum- 
moned by  a  sheriff  without  precept,  the  indictment  will  be  quashed :  Nich- 
olls  v.  State,  5  N.  J.  Law  539;  Chase  v.  State,  20  N.  J.  Law  218;  State  v. 
Cantrell,  21  Ark.  127.    But  see  Hess  v.  State,  73  Ind.  537.    In  McGuire  v. 
People,  2  Parker  Cr.  Rep.  (N.  Y.)   148,  it  was  held  that  if  no  precept  is- 
sued the  defendant  could  avail  himself  of  such  irregularity  after  verdict. 
Where  a  .statute  authorized  the  sheriff  to  summon  grand  jurors  without  pre- 
cept, but  he  neglected  to  have  a  grand  jury  in  court  on  the  first  day  of  the 
term,  it  was  held  that  the  judge  could  issue  a  precept  to  the  sheriff,  direct- 
ing him  to  produce  a  grand  jury  at  a  later  day;  the  statute  did  not  take 
from  the  court  the  right  to  issue  its  precept:     Challenge  to  Grand  Jury, 
3  N.  J.  Law  Jour.  153.     That  the  order  was  not  served  upon  the  sheriff 
is  not  error,  he  having  regularly  summoned  a  grand  jury;  People  v.  Cui- 
tano,  15  Calif.  327. 

12  That  the  venire  was  issued  by  a  person  not  legally  qualified  to  act  was 
held  not  a  good  objection  in  arrest  of  judgment:    Peters  v.  State,  n  Tex. 
762. 

13  State  v.  Lightbody,  38  Me.  200.    A  venire  need  not  issue:     Bird  v. 
State,  14  Ga.  43;  Boyd  v.  State,  46  Tenn.  (6  Cold.)  I ;  Robinson  v.  Com.  88 
Va.  900;  Combs  v.  Com.,  90  Va.  88. 

14  Conner  v.  State,  25  Ga.  515.     That  the  venire  is  not  addressed  to  the 
proper  officer  will  not  avail  a  defendant  where  the  writ  was  actually  re- 
ceived and  executed  by  the  proper  person :     State  v.  Phillips,  2  Ala.  297. 

15  State  v.  Lightbody,  38  Me.  200;  State  v.  Fleming,  66  Me.  142;  People 
v.  McKay,  18  Johns  (N.  Y.)  212. 

16  Maher  v.  State,  i   Port.   (Ala.)   265;  Bennett  v.  State,  i  Martin  & 
Yerger  (Tenn.)  133;  State  v.  Bradford,  57  N.  H.  188. 

17  People  -v.  The  Justices,  20  Johns  (N.  Y.)  310;  Davis  v.  Com.  89   Va. 
132.    In  State  v.  Bradford,  57  N.  H.  188,  it  was  held  that  the  venire  need 
not  bear  teste  of  the  chief,  first  or  senior  justice. 


ORGANIZATION  AND  QUALIFICATIONS.  49 

quashed  ;18  in  others  it  has  been  sustained  upon  the  ground  that 
this  provision  of  the  statute  is  but  directory  and  a  failure  to 
comply  with  it  will  in  no  manner  prejudice  the  defendant.19 

A  venire  which  directs  the  sheriff  to  summon  good  and  law- 
ful men  is  sufficient ;  it  need  not  set  forth  the  qualifications  re- 
quisite to  constitute  them  good  and  lawful  grand  jurors.20  It 
should  set  forth  correctly  the  names  of  the  persons  to  be  sum- 
moned; failure  to  observe  this  requirement  affords  good 
ground  upon  which  a  defendant  may  move  to  set  aside  the  in- 
dictment. It  has,  however,  been  held  that  the  omission  of  a 
middle  name,  the  insertion  of  a  wrong  initial,  the  omission  of 
an  initial,  or  the  mis-spelling  of  a  name  will  in  general  be 
no  ground  for  quashing  an  indictment,  there  being  no  proo£ 
that  a  person  other  than  the  one  summoned  bears  the  name  as 
set  forth  in  the  writ  and  was  the  person  designated  thereby  to 
be  summoned  as  a  grand  juror.21 

It  is  the  duty  of  the  officer  charged  with  the  execution  of  the 
venire  to  make  a  return  thereto,  showing  the  manner  in  which 
the  command  of  the  writ  was  obeyed  and  the  authority  by 
which  he  acted.22  Should  he  fail  to  do  so,  an  indictment  will 
not  be  quashed  for  this  reason,  but. the  court  will,  on  its  atten- 
tion being  directed  to  the  fact,  order  such  officer  to  make  a  re- 
turn, or  sign  such  return  if  made  and  not  signed.23  The  court 

18  State  v.  Lauer,  41  Neb.  226;  Thorpe  v.  People,  3  Utah,  441. 

19  State  v.  Smith,  67  Me.  328 ;  State  v.  Smith,  38  S.  C.  270. 

20  State  v.  Alderson,  10  Yerg.  (Tenn.)  523.    And  see  Welsh  v.  State,  96 
Ala.  92;  Stewart  v.  State,  98  Ala.  70. 

21  Rampey  v.  State,  83  Ala.  31 ;  State  v.  Armstrong,  167  Mo.  257 ;  State 
v.  McNamara,  3  Nev.  70 ;  State  v.  Van  Auken,  68  N.  W.  454.    See  Turner 
v.  State,  78  Ga.,  174.     In  Nixon  v.  State,  68  Ala.  535,  a  juror  regularly 
drawn  was  falsely  personated  by  another  person  of  the  same  surname,  who 
was  sworn  as  a  member  of  the  grand  jury  and  a  plea  in  abatement  was  sus- 
tained. 

22  State  v .  Rickey,  9  N.  J.  Law,  293 ;  Challenge  to  Grand  Jury,  3  N.  J. 
Law  Jour.  153;  Chase  v.  State,  20  N.  J.  Law  218;  State  v.  Cough,  49  Me. 
573.    And  see  State  v.  Powers,  59  S.  C.  200.    It  is  not  necessary  that  the 
return  should  show  that  the  sheriff  served  the  writ  upon  the  jury  com- 
missioners, the  record  showing  that  the  writ  issued  and  that  the  commis« 
sioners  acted  in  accordance  therewith :    State  v.  Derrick,  44  S.  C.  344. 

23  Com.  v.  Chauncey,  2  Ashm.  (Pa.)  101 ;  State  v.  Derrick,  44  S.  C.  344, 

4 


50  THE  GRAND  JURY. 

has  allowed  it  to  be  signed  after  verdict  of  guilty  in  a  capital 
case.24 

In  this  case  it  was  said  by  Chief  Justice  Parker :  "Here  the 
return  was  duly  made,  except  that  the  officer  through  inadver- 
tence had  omitted  to  affix  his  signature;  and  this  he  has  now 
done,  and  we  think  properly,  by  the  permission  of  the  court. 
It  is  true,  that  in  a  capital  case  the  court  would  not  permit  the 
prisoner  to  be  prejudiced  by  an  amendment,  but  they  are  not 
bound  to  shut  their  eyes  to  the  justice  of  the  case,  when  an 
error  in  matter  of  form  can  be  rectified  without  any  prejudice 
to  him." 

The  return  may  be  amended  to  accord  with  the  facts.25 
Where  it  happens  that  less  than  the  requisite  number  of  per- 
sons are  present  to  constitute  a  legal  grand  jury,  it  is  ordinarily 
provided  by  statute  how  sufficient  jurors  shall  be  procured  to 
bring  that  body  up  to  the  legal  number.  The  court  issues  an 
order  to  the  sheriff  or  other  officer  charged  with  the  duty  of 
summoning  the  jurors,  directing  the  number  to  be  returned28 
and  whether  they  shall  be  summoned  from  the  same  or  other 
panels  of  jurors,27  from  the  body  of  the  county28  or  from  the 
bystanders.29  If  the  judge  should  give  to  the  sheriff  the  names 

24  Com.  v.  Parker,  2  Pick  (Mass.)  550. 

25  Rampey  v.  State,  83  Ala.  31 ;  State  v.  Clough,  49  Me.  573. 

26  Kilgore  v.  State,  74  Ala.  i ;  Levy  v.  Wilson,  69  Calif.  105.     No  pre- 
cept need  issue  to  summon  talesmen  as  grand  jurors:     State  v.  Pierce,  8 
Iowa  231. 

27  State  v.  Gurlagh,  76  Iowa  141 ;  State  v.  Silvers,  82  Iowa  714;  State  v. 
Jacobs,  6  Tex.  99. 

28  Keech  v.  State,  15  Fla.  591;  Jenkins  v.  State,  35  Fla.  737;  State  v. 
Garhart,  35  Iowa  315 ;  Montgomery  v.  State,  3  Kan.  263 ;  See  Chartz  v. 
Territory,  32  Pac.  166.    The  court  may  order  that  the  deficiency  be  filled 
either  from  the  list  furnished  by  the  county  commissioners,  by  drawing 
from  the  box  or  from  the  body  of  the  county:  Jones  v.  State,  18  Fla.  889; 
Dukes  v.  State,  14  Fla.  499;  Newton  v.  State,  21  Fla.  53.    In  Finley  v. 
State,  61  Ala.  201 ;  Couch  v.  State,  63  Ala.  163  and  Benson  v.  State,  68 
Ala.  513,  it  was  held  that  talesmen  must  be  summoned  from  the  qualified 
citizens  of  the  county  and  not  from  the  by-standers. 

29  State  -v.  Swim,  60  Ark.  587;  Winter  v.  Muscogee  Railroad  Co.,  n 
Ga.  438 ;  Nealon  v.  People,  39  111.  App.  481 ;  Dorman  v.  State,  56  Ind.  454 ; 
Dowling  v.  State,  5  Smedes  &  M.   (Miss.)  664;  Portis  v.  State,  23  Miss. 
578 ;  Yelm  Jim  v.  Territory,  i  Wash.  T.  63 ;  Watt  v.  Territory,  Id.  409. 


ORGANIZATION  AND  QUALIFICATIONS.  5! 

of  persons  to  be  summoned  as  talesmen,  while  this  is  an  irregu- 
larity, it  has  been  held  not  sufficient  to  invalidate  an  indictment 
found  by  a  grand  jury  so  constituted  *°  In  the  absence  of  a 
statute  regulating  the  summoning  of  talesmen  it  has  been  held 
that  a  judge  has  no  authority  to  issue  a  venire  to  supply  nny 
deficiency  in  the  number  of  grand  jurors,  but  that  a  tales 
should  issue  and  by-standers  be  brought  in.31  Substitutes  can- 
not be  received  for  any  part  of  the  regular  panel.32 

Before  talesmen  can  lawfully  be  summoned,  the  panel  must 
be  reduced  below  the  number  necessary  to  indict  or  form 
a  legal  grand  jury,33  and  this  must  be  shown  affirmatively  by 
the  record  which  must  also  show  that  a  formal  order  for  sum- 
moning talesmen  was  made  by  the  court.  If  this  be  not  affirm- 
atively shown  by  the  record,  it  is  an  irregularity  which  may  be 
taken  advantage  of  by  motion  to  quash.34  A  trial  on  the  mer- 
its of  the  issue  will  cure  such  irregularity. 

A  grand  juror  regularly  drawn  and  summoned,  but  who 
does  not  appear  until  after  the  grand  jury  has  been  organized, 
sworn  and  charged,  may  in  general  be  allowed  to  act  with  that 
body  after  the  oath  has  been  administered  to  them.35  This, 

30  State  v.  Copp.,  34  Kan.  522.    And  see  State  v.  Keating,  85  Md.  188; 
Runnels  v.  State,  28  Ark.  121. 

31  State  v.  Symonds,  36  Me.  128. 

32  Rawls  v.  State,  8  Smedes  &  M.  (Miss.)  599.    If  a  grand  juror  regu- 
larly drawn  is  falsely  personated  by  another  person  of  the  same  surname, 
who  is  sworn  as  a  member  of  the  grand  jury  in  place  of  the  other,  this  is 
good  ground  for  a  plea  in  abatement :  Nixon  v.  State,  68  Ala.  535. 

33  Cross  v.  State,  63  Ala.  40;  Berry  v.  State  Id.  126;  Blevins  v.  State,  68 
Ala.  92;  Boyd  v.  State,  98  Ala.  33;  State  v.  Garhart,  35  Iowa  315;  Jewell  v. 
Com.,  22  Pa.  94;  Harris  v.  State,  13  So.  Rep.  15,  and  see  Winter  v.  Mus- 
cogee  Railroad  Co.,  n  Ga.  438;  Beasley  v.  People,  89  111.  571.    Talesmen 
may  be  added  to  the  grand  jury  after  it  has  been  empanelled:  State  v. 
Mooney,  10  Iowa  506. 

34  Jewell  v.  Com.  22  Pa.  94.     In  State  v.  Miller,  53  Iowa  84,  the  court 
made  a  verbal  order  and  on  appeal  Judge  Beck  says:     "The  sheriff  in  this 
case  was  orally  directed  to  fill  the  panel.    The  order  upon  which  this  di-. 
rection  was  based,  we  will  presume  was  entered  of  record,  for  doubtless 
the  law  so  requires  and  the  record  before  us  does  not  show  to  the  con- 
trary." 

35  State  v.  Fowler,  52  Iowa  103;  In  re  Wadlin,  n  Mass.  142;  Findley  v. 
People,  i  Manning  (Mich.)  234.  In  State  v.  Froiseth,  16  Minn.  313,  where  a 


52  THE  GRAND  JURY. 

however,  is  within  the  discretion  of  the  court,  and  the  court 
may  refuse  to  allow  him  to  be  sworn  if  there  are  sufficient 
jurors  without  him.36 

At  common  law  if  the  array  was  quashed,  or  all  of  the  grand 
jurors  challenged  or  absent,  a  tales  could  not  issue,  and  it  was 
necessary  that  a  new  venire  should  be  awarded.37  But  under 
statutes  enacted  in  the  various  states,  talesmen  may  be  sum- 
moned when  all  of  the  grand  jurors  are  disqualified.38  If,  for 
any  reason,  a  grand  jury  has  not  been  drawn  and  summoned 
as  required  by  statute,  in  some  States  the  judge  has  the  statu- 
tory power  to  enter  an  order  directing  the  sheriff  to  summon  a 
panel  of  grand  jurors,39  and  should  there  be  no  statute  giving 
such  authority,  there  is  an  implied  power  in  the  court  to  direct 
that  this  be  done.40 

Should  the  order  of  the  court  direct  that  talesmen  be  selected 
from  an  improper  class  of  persons,  it  has  been  held  that  an  in- 
dictment found  by  a  grand  jury  so  constituted  is  invalid ;  other- 
wise where  the  order  is  regular  and  incompetent  persons  are  se- 
lected by  the  sheriff  in  executing  the  order.41 

The  manner  of  selecting  and  procuring  the  attendance  of 
grand  jurors  in  Pennsylvania  is  regulated  by  the  Act  of  April 

juror  appeared  after  the  grand  jury  had  duly  entered  upon  its  duties,  was 
sworn  but  no  charge  delivered  to  him  or  again  to  the  grand  jury 
as  a  whole,  McMillan,  J.,  concludes  his  opinion  with  this  language:  "But 
it  may  not  be  improper  to  say,  that  in  cases  where  a  sufficient  number  of 
grand  jurors  upon  the  regular  panel  appear  and  are  sworn  and  charged,  the 
admission  of  others  of  the  regular  panel  appearing  afterwards,  is  a  matter 
addressed  to  the  discretion  of  the  court,  and  in  such  cases  when  they  are 
admitted,  or  where  additional  jurors  are  summoned  after  the  organization 
of  the  jury,  to  supply  any  deficiency  which  may  occur,  in  view  at  least  of 
the  oath  prescribed,  the  charge  should  be  repeated." 

36  State  v.  Froiseth,  16  Minn.  313;  Findley  v.  People,  i  Manning  (Mich.) 
234- 

37  Bowling  v.  State,  5  Smedes  &  M.  (Miss.)  664. 

38  State  v.  Smith,  88  Iowa,  178. 

39  State  v.  Brooks,  9  Ala.  9;  Hester  v.  State,  103  Ala.  83;  Newton  v. 
State,  21  Fla.  53. 

40  Straughan  v.  State,  16  Ark.  37 ;  Wilburn  v.  State,  21  Ark.  198. 

41  Oliver  v.  State,  66  Ala.  8. 


ORGANIZATION  AND  QUALIFICATIONS.  53 

loth,  i867,42  which  provides  for  two  jury  commissioners  who 
are  elected  for  three  years  and  cannot  succeed  themselves,  one 
each  being  of  the  majority  and  minority  parties.  The  jury 
commissioners  and  a  judge,  or  a  majority  of  them,  meet  at  the 
county  seat  thirty  days  before  the  first  term  of  the  Court  of 
Common  Pleas,  and  place  in  the  proper  jury  wheels  the  num- 
ber of  names  designated  by  the  Common  Pleas  Court  at  the 
preceding  term.  The  wheels  are  then  locked,  sealed,  with  the 
separate  seals  of  the  jury  commissioners  and  the  sheriff,43  and 
remain  in  the  custody  of  the  jury  commissioners,  while  the 
sheriff  has  possession  of  the  keys  to  the  wheels. 

To  procure  the  drawing  of  a  panel  of  grand  jurors,  a  writ  of 
venire  facias  is  issued  by  the  clerk  of  the  Court  of  Quarter  Ses- 
sions or  Oyer  and  Terminer,  upon  the  precept  of  the  court, 
commanding  the  sheriff  and  jury  commissioners  to  empanel, 
and  the  sheriff  to  summon  a  grand  jury.44  The  panel  of  grand 
jurors  is  drawn  from  the  wheel  by  at  least  one  jury  commis- 
sioner and  the  sheriff,  who,  before  selecting  or  drawing  jur- 
ors, take  an  oath  that  they  will  faithfully  and  impartially  per- 
form their  duties.45 

After  the  names  of  the  jurors  are  drawn  from  the  wheel  they 

42  Pamph.  Laws  62 ;  Section  8  of  this  Act  was  held  to  be  directory ; 
Com.  v.  Zillafrow,  207  Pa.  274. 

43  Com.  v.  Delamater,  2  Dist.  Rep.  (Pa.)  562. 

44  If  separate  writs  of  venire  issue  from  the  Courts  of  Quarter  Sessions 
and  Oyer  and  Terminer,  the  judges  shall  order  the  sheriff  to  return  one 
and  the  same  panel  to  both  writs.     Act  April  14,  1834,  Sec.  no,  P.  L.  360. 

45.  Act  April  14,  1834,  Sec.  87,  P.  L.  357 ;  Act  April  10,  1867,  P.  L.  62. 
In  Philadelphia,  the  proceedings  for  drawing  and  summoning  grand  jurors 
are  regulated  by  the  Acts  of  March  31,  1843,  P.  L.  123;  April  20,  1858. 
P.  L.  354;  April  13,  1859,  P.  L.  595;  and  March  13,  1867,  P.  L,  420.  Tha 
persons  eligible  for  jury  duty  are  returned  by  the  assessors  in  each  ward. 
The  Supreme  Court  Justices  (when  sitting  in  Philadelphia)  and  Judges  of 
the  Common  Pleas  Courts  with  the  sheriff,  constitute  a  board  to  superin- 
tend the  selection  and  drawing  of  jurors.  Any  two  of  the  judges  and  the 
sheriff  form  a  quorum.  Before  December  10,  in  each  year,  the  board  se- 
lects sufficient  jurors  to  serve  on  grand  and  petit  juries  for  the  ensuing 
year,  the  names,  etc.,  of  those  selected  being  written  on  slips  of  paper  and 
placed  in  the  wheel,  which  is  then  locked  and  kept  by  the  sheriff  in  his  ex- 
clusive custody.  A  list  of  the  names  placed  in  the  wheel  are  certified  to 
each  court  by  the  members  of  the  board  then  present,  where  it  is  filed.  At 


54  THE  GRAND  JURY. 

are  to  be  inserted  in  the  venire  and  such  persons  are  then  sum- 
moned to  appear  by  the  sheriff  or  his  deputies.  If  a  grand 
juror  receives  notice  and  attends  the  court,  it  has  been  held  to 
be  of  no  consequence  how  he  was  summoned.  His  attendance 
in  obedience  to  the  command  of  the  writ  cures  any  defect  in 
the  manner  of  summoning.46  The  sheriff  makes  his  return  to 
the  venire,  showing  the  persons  summoned  as  grand  jurors,  but 
it  has  been  held  that  it  is  not  necessary  for  the  sheriff  and  jury 
commissioners  to  make  an  affidavit  to  their  return  that  the 
jurors  were  drawn  and  returned  according  to  law.47 

The  grand  jury  may  be  summoned  to  meet  prior  to  the  hold- 
ing of  the  regular  terms  of  court  if  the  judges  of  such  court 
deem  it  expedient,  and  may  be  detained  for  an  additional  week 
if  the  business  of  the  court,  in  the  opinion  of  the  judges,  re- 
quires it.48 

Where  the  panel  by  reason  of  the  failure  of  grand  jurors  to 
appear,  or  through  challenges  or  other  cause,  is  reduced  below 
the  number  necessary  to  indict,  a  tales  de  circumstantibus  may 
issue.49  The  number  of  talesmen  who  may  be  summoned  by 
this  writ,  has  not  been  defined  by  law,  but  as  the  full  grand  jury 
consists  of  twenty-three,  it  would  seem  that  talesmen  might 
lawfully  be  summoned  until  the  grand  jury  contained  its  full 
number.50  In  Commonwealth  v.  Morton,51  the  panel  was  re- 
duced to  eleven  jurors,  and  on  a  tales  being  issued,  two  tales- 
men were  brought  in,  were  sworn  and  acted  with  the  grand 


least  three  weeks  before  the  beginning  of  each  term  the  board  draws  from 
the  wheel  sufficient  names  to  constitute  the  panels  of  grand  and  petit  jurors 
for  the  several  courts,  and  a  list  of  the  names,  etc.,  of  such  jurors  is  certified 
to  the  respective  courts  and  to  the  sheriff. 

46  Com.  v.  Salter,  2  Pears.  (Pa.)  461;  Sylvester  v.  State,  72  Ala.  201; 
Hughes  v.  State,  54  Ind.  95. 

47  Com.  v.  Salter,  2  Pears,  (Pa.)  461. 

48  Penna.  Act  March  18,  1875,  Sec.  i,  P.  L.  28;  Com.  v.  Smith,  4  Pa. 
Sup.  Ct.  Rep.  i.    See  State  v.  Davis,  126  N.  C.  1007;  State  v.  Battle,  126 
N.  C.  1036. 

49  Penna.  Act  March  31,  1860,  Sec.  41,  P.  L.  439;  Com.  v.  Morton,  34  L. 
I.  (Pa.)  438. 

50  Post  56.    And  see  note  57. 

51  34  L.  I.  (Pa.)  438. 


ORGANIZATION  AND  QUALIFICATIONS.  55 

jury  in  the  finding  of  indictments.  This  proceeding  was  sus- 
tained by  Judge  Allison. 

In  the  Federal  courts,  the  selection  and  drawing  of  grand 
jurors  is  regulated  by  the  Act  of  June  30,  i879,62  which  pro- 
vides that  grand  jurors  shall  be  drawn  from  a  box  containing 
at  the  time  of  each  drawing,  the  names  of  not  less  than  three 
hundred  persons,  the  names  having  been  placed  in  the  box  by 
the  clerk  of  the  court  and  a  commissioner,  appointed  by  the 
judge  of  such  court,  and  being  a  citizen  of  good  standing,  re- 
siding in  the  district  and  a  well  known  member  of  the  political 
party  opposing  that  of  which  the  clerk  is  a  member.  The  clerk 
and  the  commissioner  shall  each  place  one  name  in  the  box 
alternately  until  the  necessary  number  of  names  has  been 
placed  therein.63  The  right  is  reserved  to  the  court  to  order 
the  grand  jurors  to  be  drawn  from  the  wheels  used  by  the  State 
authorities  in  drawing  jurors  to  serve  in  the  highest  court  of 
the  state.54 

When  the  grand  jurors  have  been  drawn,  a  venire  issues 
from  the  clerk's  office  to  the  marshal,  directing  him  to  sum- 
mon twenty-four  persons  to  serve  as  grand  jurors.  The  names 
of  the  persons  thus  drawn  from  the  box  are  inserted  in  the 
venire  and  are  thereupon  summoned  by  the  marshal.  If  it  hap- 
pens that  less  than  sixteen  appear,  or  having  appeared  the  num- 
ber is  depleted  by  challenge  or  other  cause  to  less  than  the 
legal  requirement,  in  such  case  the  court  orders  the  marshal  to 
summon,  either  immediately  or  for  a  day  fixed,  a  sufficient 
number  of  persons  to  complete  the  grand  jury,  and  these  per- 
sons are  taken  from  the  body  of  the  district  and  not  from  the 
by-standers.66 


52  This  act  is  mandatory,  but  an  intention  to  carry  out  its  provisions  in 
good  faith  is  all  that  is  required :    U.  S.  v.  Ambrose,  3  Fed.  Rep.  283.  See 
U.  S.  v.  Greene,  113  Fed.  Rep.  683,  where  many  points  arising  under  this 
act  were  decided. 

53  U.  S.  v.  Rondeau,  16  Fed.  Rep.  109. 

54  Act  June  30,  1879,  21  Stat.  L.  43;  R.  S.  U.  S.  Sec.  800-801;  U  S.  v. 
Reed,  27  Fed.  Cas.  727;  U.  S.  v.  Richardson,  28  Fed.  Rep.  61.    The  clause 
of  Sec.  801,  R.  S.  U.  S.,  relating  to  Pennsylvania  was  repealed  by  Act  June 
30,  1879. 

55  R.  S.  U.  S.  Sec.  808. 


56  THE  GRAND  JURY. 

This  statute,  like  the  Pennsylvania  statute,66  does  not  de- 
fine whether  the  number  to  be  summoned  shall  make  the  panel 
sixteen  or  twenty-three.  This,  however,  would  seem  to  be 
largely  within  the  discretion  of  the  court,57  for  there  being  no 
limitation  of  the  number  to  be  summoned,  no  objection  can 
well  be  made  where  the  additional  jurors  do  not  increase  the 
panel  beyond  the  legal  number.  While  it  is  thus  necessary 
that  sixteen  should  be  present  to  constitute  a  legal  grand  jury, 
it  is  only  necessary  that  twelve  should  concur  in  order  to  find 
a  true  bill  or  make  a  valid  presentment.58 

Where  less  than  seventeen  and  more  than  twelve  were  present 
and  a  true  bill  was  found,  the  defendant  tried  on  the  merits, 
convicted  and  sentenced,  it  was  held  by  the  United  States  Su- 
preme Court  upon  habeas  corpus  proceeedings  based  upon  an 
alleged  illegal  detention  that  this  was  not  such  a  defect  as 
would  vitiate  the  entire  proceeding,  even  although  the  defend- 
ant had  no  knowledge  of  it  until  after  sentence  had  been  im- 
posed upon  him.59  If,  however,  exception  should  be  taken  to 
an  indictment  found  by  a  grand  jury  so  constituted,  either  by 
plea  in  abatement  or  motion  to  quash,  the  objection  should  be 
sustained,  for  the  indictment  thus  found  is  the  finding  of  a 
grand  jury  not  constituted  in  the  manner  provided  by  law.60 
This  defect  will  be  cured,  however,  by  the  plea  of  the  general 
issue. 

Where  in  the  venire  for  a  panel  of  grand  jurors  the  court 
directed  that  they  should  be  summoned  from  a  certain  part  of 
the  district,61  as  may  be  done  under  authority  of  the  Revised 


56  Act  March  31,  1860,  Sec.  41,  P.  L.  439. 

57  In  U.  S.  v.  Eagan,  30  Fed.  Rep.  608,  Judge  Thayer  says,  "Undoubt- 
edly the  court  may  determine  of  how  many  persons  up  to  twenty-three  the 
grand  jury  shall  consist." 

58  i  Whart.  Cr.  Law,  Sec.  4633,  (7th  ed.). 

59  In  re  Wilson,  140  U.  S.  575,  and  see  State  v.  Swift,  14  La.  Ann.  827 ; 
CONTRA  Doyl    v.  State,  17  Ohio  222. 

60  State  v.  Hawkins,  10  Ark.  71 ;  Doyle  v.  State,  17  Ohio  222 ;  Barron  z/, 
People,  73  111.  256;  Norris  House  v.  State,  3  G.  Greene  (Iowa)  513;  State 
v.  Cooley,  75  N.  W.  729,  and  see  Brannigan  v.  People,  3  Utah  488. 

61  U.  S.  v.  Ayres,  46  Fed.  Rep.  651 ;  People  v.  Reigel,  78  N.  W.  1017. 
See  Williams  v.  State,  61  Ala.  33.    In  Finley  v.  State,  61  Ala.  201,  Ulmer  v. 


ORGANIZATION  AND  QUALIFICATIONS.  57 

Statutes  of  the  United  States,  Section  802,  it  was  held  that  this 
was  not  in  conflict  with  the  Sixth  Amendment  to  the  Constitu- 
tion of  the  United  States  which  provides:  "In  all  criminal 
prosecutions,  the  accused  shall  enjoy  the  right  to  a  speedy  and 
public  trial,  by  an  impartial  jury  of  the  state  and  district 
wherein  the  crime  shall  have  been  committed.  . 

In  England62  grand  jurors  are  selected  and  summoned  in 
accordance  with  the  provisions  of  the  statute  6,  Geo.  IV,  c.  50 
as  amended.  The  clerk  of  the  peace  causes  warrants,  precepts 
and  returns  to  be  printed  in  the  form  set  out  in  the  schedule 
annexed  to  the  statute.  These  precepts  are  then  sent  by  the 
clerk  to  the  church  wardens  and  overseers  of  every  parish  and 
the  overseers  of  every  township,  who  are  required  to  prepare 
an  alphabetical  list  of  every  man  residing  in  their  respective 
parishes  or  townships  who  is  qualified  and  liable  for  grand  jury 
service,  with  his  place  of  abode,  title,  quality,  calling  or  busi- 
ness. A  copy  of  such  list  when  prepared  is  affixed  to  the  prin- 
cipal door  of  every  church  and  chapel  on  the  first  three  Sundays 
of  September.  The  justices  of  the  peace  then  hold  a  special 
session  during  the  last  seven  days  of  September  of  each  year, 
when  the  lists  are  produced  and  names  either  added  or  stricken 
from  the  list,  but  no  name  can  either  be  added  or  removed  un- 
less the  justice  first  gives  notice  to  the  party  whose  name  it  is 
proposed  to  add  or  remove  from  the  list.  The  lists  are  re- 
turned to  the  quarter  sessions  and  kept  by  the  clerk  of  the 
peace.  The  jurors  are  selected  from  this  list  by  the  sheriff, 
who  thereupon  summons  them  to  appear. 

Where  the  provisions  of  the  statute  under  which  grand 
jurors  are  selected  and  drawn  are  but  directory,  the  court  will 
not  quash  an  indictment  upon  the  ground  of  irregularity  in  the 
selection  or  drawing  when  it  does  not  appear  that  such  irregu- 
larity will  prejudice  the  defendant.63 

State,  Id.  208,  Couch  v.  State,  63  Ala.  163,  and  Benson  v.  State,  68  Ala. 
513,  will  be  found  instances  where  the  writ  directed  the  sheriff  to  summon 
a  grand  jury  from  only  a  portion  of  the  persons  from  whom  the  statute 
provided  it  should  be  drawn,  and  a  grand  jury  thus  constituted  was  held 
not  a  legal  grand  jury. 

62  Chitty's  English  Statutes,  Vol  6,  Tit.  Juries. 

63  Bales  v.  State,  63  Ala.  30;  State  v.  Carney,  20  Iowa  82;  Johnson  r. 


58  THE  GRAND  JURY. 

In  the  selection  and  drawing  of  grand  jurors  the  absence  of 
any  particular  officer  designated  to  participate  in  the  proceed- 
ings will  not  ordinarily  invalidate  the  selection  and  drawing 
thus  made,  a  majority  of  those  directed  to  perform  such  duty 
being  present  and  legally  competent  to  act.64  The  duty  thus 
imposed  upon  any  person  by  statute  cannot  be  delegated  by 
him  to  another;65  it  is  wholly  personal  and  when  disregarded 
may  be  successfully  relied  upon  by  a  defendant  for  setting 
aside  an  indictment  returned  against  him. 

Where  grand  jurors  have  been  selected  by  officers  de  facto, 
it  has  been  held  that  this  cannot  be  availed  of  by  a  defendant 
for  the  purpose  of  invalidating  the  indictment.  The  acts  of 
such  officers  as  to  third  persons  are  as  valid  as  the  acts  of  offi- 
cers de  jure.66 

An  indictment  found  by  a  de  facto  grand  jury  has  been  sus- 
tained.67 

This  doctrine  was  carried  to  the  extreme  limit  in  New  York 
in  the  case  of  People  v.  Petrea,67*  where  the  act  under  which 
the  grand  jurors  were  selected  was  unconstitutional,  but  the 

State,  33  Miss.  363;  State  v.  Hay  wood,  73  N.  C.  437;  State  v.  Martin,  82 
N.  C.  672 ;  Com.  v.  Zillaf row,  207  Pa.  274. 

64  Stevenson  v.  State,  69  Ga.  68;  Roby  v.  State,  74  Ga.  812;  Smith  v. 
State,  90  Ga.  133. 

65  Levy  v.  Wilson,  69  Calif.  105;  State  v.  Conway,  35  La.  Ann.  350; 
State  v.  Taylor,  43  Id.  1131;  Preuit  v.  People,  5  Neb.  377;  Challenge  to 
grand  jury,  3  N.  J.  Law  Jour.  153;  State  v.  McNamara,  3  Nev.  70.    A 
deputy  clerk  may  perform  the  duty  imposed  upon  the  clerk  of  the  Circuit 
Court  to  draw  from  the  box  the  names  of  the  persons  to  serve  as  grand 
jurors:    Willingham  v.  State,  21  Fla.  761.     But  in  Dutell  v.  State,  4  G. 
Greene   (Iowa)    125,  it  was  held  that  a  deputy  sheriff  could  not  legally 
compare  the  list  of  grand  jurors  where  that  duty  was  by  statute  imposed 
upon  the  sheriff:    And  see  State  v.  Brandt,  41  Iowa  593.    Where  a  new 
constitution  imposed  upon  a  superior  judge  the  duties  performed  by  the 
county  judge,  the  superior  judge  succeeds  to  the  duties  of  the  county 
judge  in  drawing  jurors:     People  v.  Gallagher,  55  Calif.  462. 

66  Durrah  v.  State,  44  Miss.  789 ;  Dolan  v.  People,  64  N.  Y.  485 ;  State  v. 
Krause,  i  Ohio,  N.  P.  91. 

67  State  v.  Marsh,  13  Kan.  596;  People  v.  Petrea,  92  N.  Y.  128;  People  v. 
Morgan,  95  N.  W.  542. 

67*  92  N.  Y.  128. 


ORGANIZATION  AND  QUALIFICATIONS.  59 

Court  of  Appeals  held  that  the  indictment  had  been  found  by 
a  de  facto  grand  jury  and  was  therefore  valid. 

In  discussing  the  case  Andrews,  J.  says : 

"We  are  of  opinion  that  no  constitutional  right  of  the  de- 
fendant was  invaded  by  holding  him  to  answer  to  the  indict- 
ment. The  grand  jury,  although  not  selected  in  pursuance  of 
a  valid  law,  were  selected  under  color  of  law  and  semblance  of 
legal  authority.  The  defendant,  in  fact,  enjoyed  all  the  pro- 
tection which  he  would  have  had  if  the  jurors  had  been  selected 
and  drawn  pursuant  to  the  general  statutes.  Nothing  could 
well  be  more  unsubstantial  than  the  alleged  right  asserted  by 
the  defendant  under  the  circumstances  of  the  case.  He  was  en- 
titled to  have  an  indictment  found  by  a  grand  jury  before 
being  put  upon  his  trial,  an  indictment  was  found  by  a  body, 
drawn,  summoned  and  sworn  as  a  grand  jury  before  a  compe- 
tent court  and  composed  of  good  and  lawful  men.  This  we 
think  fulfilled  the  constitutional  guaranty.  The  jury  which 
found  the  indictment  was  a  de  facto  jury  selected  and  organ- 
ized under  the  forms  of  law.  The  defect  in  its  constitution, 
owing  to  the  invalidity  of  the  law  of  1881,  affected  no  substan- 
tial right  of  the  defendant.  We  confine  our  decision  upon  this 
point  to  the  case  presented  by  this  record,  and  hold  that  an  in- 
dictment found  by  a  jury  of  good  and  lawful  men  selected  and 
drawn  as  a  gfrand  jury  under  color  of  law,  and  recognized  by 
the  court  and  sworn  as  a  grand  jury,  is  a  good  indictment  by  a 
grand  jury  within  the  sense  of  the  Constitution,  although  the 
law  under  which  the  selection  was  made,  is  void." 

After  grand  jurors  have  been  drawn  they  must  be  sum- 
moned to  attend  at  court.  This  duty,  unless  other  persons  be 
designated  by  statute,  devolves  upon  the  sheriff  and  his  depu- 
ties, and  should  they  for  any  reason  be  disqualified,  then  upon 
the  coroner.68 

In  the  conduct  of  legal  proceedings  the  presumption  is  that 
official  acts  have  been  performed  in  the  manner  prescribed  by 
law.  When  the  sheriff  selects  and  summons  grand  jurors,  he 

68  State  v.  Williams,  5  Port.  (Ala.)  130;  Bruner  v.  Superior  Court,  92 
Calif.  239;  Conner  v.  State,  25  Ga.  515;  Com.  v.  Graddy,  4  Metcalf  (Ky.) 
223. 


6O  THE  GRAND  JURY. 

will  be  presumed  to  have  complied  with  every  requirement  of 
the  law  in  the  selection,  summoning  and  return  of  a  panel  of 
legal  jurors69  in  the  absence  of  evidence  to  the  contrary.  In 
the  case  of  Wilson  v.  People,70  Chief  Justice  Thacher  said: 
"We  are  not  permitted  to  presume  in  the  silence  of  the  record, 
that  the  court  adopted  an  illegal  method  in  convening  the 
grand  jury."  The  burden  of  proof  rests  upon  anyone  who 
alleges  irregularity  in  the  drawing  or  return  of  the  panel  or 
who  alleges  that  a  grand  juror  is  personally  disqualified  from 
serving.71 

The  qualifications  of  grand  jurors  are  in  general  the  same 
as  at  the  common  law.  In  Bracton's  time  no  persons  could 
be  grand  jurors  unless  they  were  "free  and  loyal  men  who 
have  no  suit  against  anyone,  and  are  not  sued  themselves,  nor 
have  evil  fame  for  breaking  the  peace  or  for  the  death  of  a 
man  or  other  misdeed,"  and  be  of  the  hundred  in  which  they 
were  chosen.72  In  the  Sixteenth  Century  a  grand  juror  must 
be  a  "freeman,  and  a  lawful  liege  subject,  and,  consequently 
neither  under  an  attainder  of  any  treason  or  felony,  nor  a  vil- 
lain, nor  alien,  nor  outlawed,  whether  for  a  criminal  matter, 
or  as  some  say,  in  a  personal  action,"  all  of  whom  were  to 
be  of  the  same  county,73  and  they  need  not  be  freeholders.74 
A  similar  view  is  expressed  by  Mr.  Chitty,75  who  adds,  "this 
necessity  for  the  grand  inquest  to  consist  of  men  free  from 
all  objections  existed  at  common  law,"76  and  Lord  Coke 
says,77  "if  the  indictment  be  found  by  any  persons  that  are  out- 


69  Bowling  v.  State,  5  Smedes  &  M.   (Miss.)  664.    The  list  of  grand 
jurors  returned  by  the  sheriff  is  not  evidence  that  such  jurors  are  returned 
and  qualified  according  to  law:     State  v.  Ligon,  7  Port  (Ala.)  167.    And 
see  State  v.  Congdon,  14  R.  I.  267. 

70  3  Colo.  325. 

71  State   v.    Haynes,   54   Iowa    109;    State  v.   McNeill,   93   N.   C.   552 
CONTRA  Beason  v.  State,  34  Miss.  602. 

72  Bracton-de  legibus  (Sir  Travers  Twiss-ed.)     Vol.  II,  p.  235. 

73  2  Hawk.  PI.  C.  Ch.  25,  Sec.  16. 

74  Id.  Ch.  25,  Sec.  19. 

75  i  Chitty  Cr.  Law,  307. 

76  Id.   309. 

77  3  Inst.  33. 


ORGANIZATION  AND  QUALIFICATIONS.  6l 

lawecl,  or  not  the  king's  lawful  liege  people,  or  not  lawfully 
returned,  or  denominated  by  any,  viz. :  by  all  or  any  of  these, 
that  then  the  indictment  is  void."  Perhaps  the  earliest  statute 
relating  to  the  qualifications  of  grand  jurors  was  1 1  Hen.  IV. 
C.  9,  which,  after  setting  forth  the  classes  of  persons  who  were 
disqualified  from  acting  as  grand  jurors,  provided  that  if  an 
indictment  should  be  presented  by  a  grand  jury  containing  a 
single  disqualified  person,  it  was  wholly  void.78 

Blackstone  omits  all  reference  to  the  qualifications  of  grand 
jurors  except  to  say,  "they  are  usually  gentlemen  of  the  best 
figure  in  the  county,"  and  considers  they  should  be  freehold- 
ers.79 

In  England  79*  at  the  present  day  the  qualifications  of  grand 
jurors  are  defined  with  great  minuteness.  The  statute  6,  Geo. 
IV.  c.  50,  provides  that  a  grand  juror  shall  be  between  twenty- 
one  and  sixty  years  of  age,  having  in  his  own  name  or  in 
trust  for  him  in  the  same  county  "ten  pounds  by  the  year  above 
reprizes,  in  lands  or  tenements,  whether  of  freehold,  copyhold, 
or  customary  tenure,  or  of  ancient  demesne,  or  in  rents  issuing 
out  of  any  such  lands  or  tenements,  or  in  such  lands,  tenements, 
and  rents  taken  together,  in  fee  simple,  fee  tail,  or  for  the  life 
of  himself  or  some  other  person,  or  who  shall  have  within  the 
same  county  twenty  pounds  by  the  year  above  reprizes,  in  lands 
or  tenements,  held  by  lease  or  leases  for  the  absolute  term  of 
twenty-one  years,  or  some  longer  term,  or  for  any  term  of 
years  determinable  on  any  life  or  lives,  or  who  being  a  house- 
holder shall  be  rated  or  assessed  to  the  poor  rate,  or  to  the  in- 
habited house  duty  in  the  county  of  Middlesex,  on  a  value  of 
not  less  than  thirty  pounds,  or  in  any  other  county  on  a  value 
of  not  less  than  twenty  pounds,  or  who  shall  occupy  a  house 
containing  not  less  than  fifteen  windows." 

In  Pennsylvania  there  are  no  statutes  defining  the  qualifica- 

78  2  Hawk.  PI.  C.  Ch.  25,  Sec.  28 ;  i  Chitty  Cr.  Law,  309 ;  and  sec  U.  S. 
v.  Hammond,  26  Fed.  Cas.  99;  Com.  v.  Smith,  10  Bush  (73  Ky.)  476;  State 
v.  Jones,  8  Rob.  (La.)  616;  State  v.  Parks,  21  La.  Ann.  251 ;  State  v.  Row- 
land, 36  La.  Ann.  193;  Barney  v.  State,  12  Smedes  &  M.  (Miss.)  68;  State 
v.  Duncan,  7  Yerg.   (Tenn.)  271. 

79  4  Bl.  Com.  302. 

79*  Chilly's  English  Statutes,  Vol  6,  Tit.  Juries. 


62  THE  GRAND  JURY. 

»-— * 

tions  of  grand  jurors,  beyond  the  provision  that  only  sober, 
intelligent  and  judicious  persons  shall  be  chosen,80  and,  as  the 
common  law  is  a  part  of  the  law  of  the  state,  their  compe- 
tency would  be  determined  in  accordance  therewith,  but  they 
are  not  required  to  be  freeholders.  It  would  also  seem  that 
a  grand  juror,  like  a  petit  juror,  must  stand  indifferent  be- 
tween the  commonwealth  and  the  accused.81 

In  many  states,  a  grand  juror  is  required  to  be  a  free- 
holder ;82  in  others  a  freeholder  or  householder.83  In  Tennes- 
see84 he  need  not  have  a  freehold  in  the  county  in  which  he  is 
summoned,  while  in  West  Virginia,85  although  a  grand  juror 
is  required  to  be  a  freeholder,  the  court  has  refused  to  quash  an 
indictment  upon  the  ground  that  a  member  of  the  grand  jury 
rinding  the  indictment  did  not  possess  this  qualification. 

In  Arkansas,88  and  South  Carolina,87  it  has  been  held  that 
grand  jurors  are  not  required  to  be  freeholders. 

In  North  Carolina  the  rule  which  prevailed  in  Bracton's 
time  that  a  grand  juror  must  have  no  suit  against  any  man 
nor  himself  be  sued  seems  to  be  in  force.  Thus  it  has  been 
held  there  was  no  error  in  quashing  an  indictment  on  the 
ground  that  one  of  the  grand  jurors  was,  at  the  time  it  was 
found,  a  party  to  an  action  pending  in  the  same  county,88  and 
it  is  not  necessary  to  show  that  such  juror  participated  in  the 

80  Act  April  10,  1867,  P.  L.  62.    The  Act  of  April  20,  1858,  Sec.  2,  P.  L. 
354,  which  applies  only  to  Philadelphia,  provides  that  the  grand  jurors 
shall  be  "sober,  healthy  and  discreet  citizens." 

81  Com.  v.  Clark,  2  Browne  (Pa.)  325;  Rolland  v.  Com.,  82  Pa.  306; 
Com.  v.  Cosier,  8  Luz.  Leg.  Reg.  (Pa.)  97. 

82  Fowler  v.  State,  100  Ala.  96;  State  v.  Herndon,  5  Blackf.  (Ind.)  75; 
Wills  v.  State,  69  Ind.  286 ;  State  v.  Rockafellow,  6  N.  J.  Law  332 ;  State  v. 
Motley,  7  Rich.  Law  (S.  C.)   327;  Moore  v.  Com.  9  Leigh.   (Va.)  639; 
Com.  v.  Cunningham,  6  Gratt.  (Va.)  695. 

83  State  v.  Brown,  10  Ark.  78;  State  v.  Brooks,  9  Ala.  9;  Barney  v. 
State,  12  Smedes  &  M.  (Miss.)  68;  Jackson  v.  State,  n  Tex.  261;  Stanley 
v.  State,  1 6  Tex.  557. 

84  State  v.  Bryant,  10  Yerg.  527. 

85  State  v.  Henderson,  29  W.  Va.  147. 

86  Palmore  v.  State,  29  Ark.  248. 

87  State  v.  Williams,  35  S.  C.  344. 

88  State  v.  Liles,  77  N.  C.  496;  State  v.  Smith,  80  Id.  410.    But  see 
State  v.  Edens,  85  Id.  522. 


ORGANIZATION  AND  QUALIFICATIONS.  63 

deliberations  and  finding  of  the  grand  jury.88  In  Louisiana 
a  grand  juror  who  is  charged  with  any  crime  or  offence  can- 
not legally  serve.90 

In  some  states  a  grand  juror  must  be  a  qualified  voter, 
either  for  candidates  for  office,  to  impose  a  tax,  or  regulate 
the  expenditure  of  money  in  a  town.91 

Where  a  statute  provided  that  jurors  should  be  selected  only 
from  the  persons  who  had  paid  their  taxes  for  the  preceding 
year,  an  indictment  found  by  a  grand  jury  containing  three 
persons  who  had  not  paid  such  taxes  was  quashed.92 

In  the  State  of  Washington,  although  it  is  provided  by 
statute  that  women  shall  be  qualified  electors,  they  are  not 
competent  to  serve  as  grand  jurors  under  a  statute  providing 
that  grand  jurors  shall  be  drawn  from  the  qualified  electors.93 

In  the  Federal  courts  the  qualifications  of  grand  jurors,  ex- 
cept where  otherwise  provided  by  the  Revised  Statutes,  are  de- 
termined according  to  the  law  of  the  state  in  which  such  court 
is  located.94  Congress,  however,  has  provided  that  no  person 
shall  be  summoned  as  a  grand  juror  in  a  court  of  the  United 
States  more  than  once  in  two  years,05  nor  shall  any  person  be 
a  grand  juror  who  has  been  engaged  in  rebellion  against  the 
United  States.90 

The  common  law  provided  that  no  alien  should  be  a  grand 


89  State  v.  Smith,  80  N.  C.  410. 

90  State  v.  Thibodeaux,  48  La.  Ann.  600. 

91  Adams  v.  State,  28  Fla.  511;  State  v.  Davis,  12  R.  I.  492;  State  v. 
Congdon,  14  R.  I.  267. 

92  State  v.  Durham  Fertilizer  Co.,  in  N.  C.  658.     But  see  Cubine  v. 
State,  73  S.  W.  396. 

93  Harland  v.  Territory,  13  Pac.  453;  Rumsey  v.  Territory,  21  Pac.  152. 

94  R.  S.  U.  S.  Sec.  721.    U.  S.  v.  Chine,  62  Fed.  Rep.  798. 

95  R.  S.  U.  S.  Sec.  812;  U.  S.  v.  Reeves,  27  Fed.  Cas.  750.    But  this  can 
only  be  taken  advantage  of  by  challenge  to  the  jurors  before  indictment 
found.     It  cannot  be  raised  by  motion  to  quash  or  plea  in  abatement. 

96  R.  S.  U.  S.  Sec.  820.    This  provision  was  repealed  by  the  Act  of 
Congress,  June  30,  1879,  21  Stat.  L.  43,  but  the  revision  committee  appar- 
ently by  mistake  included  this  provision  in  the  Revised  Statutes  as  Sec, 
820,  and  it  was  re-enacted  by  Congress.     U.  S.  t1.  Gale,  109  U.  S.  65 ;  U.  S. 
v.  Hammond,  26  Fed.  Cas.  99. 


64  THE  GRAND  JURY. 

juror,97  and,  consequently,  an  alien  accused  of  an  offence  has 
no  right  to  demand  that  he  be  indicted  by  a  grand  jury  de 
medietate  linguae?*  although  he  may  demand  that  a  jury  de 
medietate  be  summoned  for  his  trial." 

Where  a  person  is  accused  of  an  offence,  he  has  a  right  to 
take  advantage  of  every  irregularity  in  the  proceedings  on  the 
part  of  the  officers  appointed  to  administer  the  law,  of  their 
personal  disqualifications,  and  of  the  personal  disqualifications 
of  the  grand  jurors,  providing  he  does  so  at  the  proper  time. 
There  are  three  separate  stages  at  which  a  defendant  may  ob- 
ject to  the  manner  in  which  the  grand  jury  has  been  constituted 
and  the  members  constituting  it. 

1.  Before  the  grand  jurors  are  sworn.100 

2.  After  they  have  been  sworn,  but  before  the  defendant  is 
indicted.101 


97  And  see  Reich  v.  State,  53  Ga.  73;  State  v.  Haynes,  54  Iowa,  109; 
State  v.  Guillory,  44  La.  Ann.  317;  Territory  v.  Harding,  6  Mont.  323; 
Territory  v.  Clayton,  8  Id.  i ;  Com.  v .  Cherry,  2  Va.  Cas.  20.     In  State  v. 
Cole,  17  Wis.  674,  the  juror  was  a  qualified  elector  of  Wisconsin,  but  was 
not  a  citizen  of  the  United  States. 

98  2  Hawk.  PI.  C.  Ch.  43,  Sec.  36 ;  2  Hale,  P.  C.  271 ;  i  Chitty  Cr.  Law 
309;  Bac.  Abr.  Juries  E.  8;  Trials  per  Pais  (Giles  Duncombe)  Vol.  I,  p. 
246;  i  Whart.  Cr.  Law,  Sec.  473,  (7th  ed.). 

99  4  Bl.  Com.  352 ;  Res.  v.  Mesca,  i  Dall.  73 ;  Roberts  Digest  of  British 
Statutes,  346.      The  Act  of  April  14,  1834,  Sec.  149,  P.  L.  366,  provides 
that  no  jury  de  medietate  shall  be  allowed  in  Pennsylvania.    In  the  District 
of  Columbia  a  foreigner  is  not  entitled  to  be  tried  by  a  jury  de  medietate; 
U.  S.  v.  McMahon,  26  Fed.  Cas.  1131. 

100  If  the  objection  is  not  raised  before  the  grand  jurors  are  sworn,  it 
cannot  thereafter  be  availed  of  on  a  motion  to  set  aside  the  indictment : 
Moses  v.  State,  58  Ala.  117;  State  v.  Ingalls,  17  Iowa  8;  State  v.  Pierce,  90 
Id.  506;  State  v.  Gibbs,  39  Id.  318;  Bellair  v.  State,  6  Blackf.  (Ind.)  104; 
State  v.  Hensley,  7  Blackf.  (Ind.)  324;  State  v.  Welch,  33  Mo.  33;  State  v. 
Rickey,  10  N.  J.  Law  83 ;  Lienberger  v.  State,  21  S.  W.  603 ;  State  v.  Ames, 
96  N.  W.  330.     See  People  v.  Borgstrom,  178  N.  Y.  254.    Under  Code 
Sec.  2375  of  Miss.,  objections  to  the  qualifications  of  grand  jurors  must  bt 
made  before  they  are  empaneled ;  they  cannot  be  made  afterward.  The  Texas 
code  of  Cr.  Proc.  1895,  Sec.  397,  contains  the  same  provision :     Barber  v. 
State,  46  S.  W.  233 ;  Carter  v.  State,  46  Id.  236.     And  see  as  to  Mississippi 
Head  v.  State,  44  Miss.  731 ;  Dixon  v.  State,  20  So.  839, 

101  See  generally  cases  in  Note  148,  page  73. 


ORGANIZATION  AND  QUALIFICATIONS.  65 

3.  After  the  defendant  has  been  indicted.102 

Where  the  right  of  challenge  exists  it  has  been  held  that  a 
refusal  by  the  court  to  allow  a  prisoner,  criminally  charged,  to 
challenge  the  grand  jury,  renders  the  jury  incompetent  to  sit 
in  his  case,  and  the  indictment  worthless  and  insufficient,103 
but  there  is  no  duty  imposed  upon  the  court  having  jurisdic- 
tion of  the  cause  to  notify  the  defendant  of  this  right.104 

When  it  is  proposed  to  make  objection  to  the  grand  jurors 
before  they  have  been  sworn,  the  objection  may  be  either  to  the 
array105  or  to  the  personal  qualifications  of  any  juror.108 

102  In  Alabama  by  Code  Sec.  4445,  it  is  provided  that  no  objection  shall 
be  made  to  any  indictment  on  a  ground  going  to  the  formation  of  the 
grand  jury  except  that  the  jurors  were  not  drawn  in  the  presence  of  the 
proper  officers.     See  Boulo  v.  State,  51  Ala.  18;  Weston  v.  State,  63  Id.  155 ; 
Phillips  v.  State,  68  Id.  469;  Billingslea  v.  State,  Id.  486;  Murphy  v.  State, 
86  Ala.  45.     In  Linehan  v.  State,  21  So.  497,  it  was  held  that  this  provision 
was  not  repealed  by  the  Act  of  February  28,  1887,  regulating  the  drawing 
and  formation  of  grand  juries.    And  see  Compton  v.  State,  23  So.  750; 
Stoneking  v.  State,  24  So.  47.    The  Act  of  February  21,  1887,  was  repealed 
by  the  Act  of  March  2,  1901 :  Edson  v.  State,  32  So.  308. 

103  People  v.  Romero,  18  Calif.  89;  State  v.  Osborne,  61  Iowa  330;  State 
v.  Warner,  165  Mo.  399;  People  v.  Wintermute,  46  N.  W.  694. 

104  People  v.  Borgstrom,  178  N.  Y.  254.     In  People  v.  Romero,  18  Calif. 
89,  Judge  Baldwin  said  in  his  opinion  reversing  the  judgment  of  the  court 
below :     "If  the  prisoner  were  refused  the  privilege  of  challenging  the  grand 
jury  in  and  by  the  Court  of  Sessions,  the  indictment  is  insufficient  and 
worthless ;  it  is  not,  in  other  words,  a  legal  indictment,  because  not  found 
by  a  body  competent  to  act  on  the  case ;  but  to  have  this  effect,  the  prisoner 
must  have  applied  for  leave  or  requested  permission  to  appear  and  chal- 
lenge the  jury.     It  was  not  the  duty  of  the  Court  of  Sessions  to  bring  him 
into  court  for  the  purpose  of  exercising  this  privilege.     It  is  the  prisoner's 
business  to  know  when  the  court  meets,  and  if  he  desires  to  challenge  the 
jury,  to  apply,  if  in  custody,  to  the  court,  to  be  brought  into  court  for  that 
purpose;  and  if  he  fails  to  do  this,  he  waives  his  privilege  of  excepting  to 
the  panel  or  any  member." 

105  U.  S.  v.  Gale,  109  U.  S.  65 ;  Gibbs  r.  State,  45  N.  J.  Law  379 ;  Terri- 
tory v.  Young,  2  N.  Mex.  93;  Huling  v  State,  17  Ohio  St.  583;  Reed  v. 
State,  i  Tex.  App.  i ;  Green  v.  State,  Id.  82;  Van  Hook  v.  State,  12  Tex. 
252;  State  v.  White,  17  Tex.  242;  Cook  v.  Territory,  4  Pac.  887;  Stanley 
r.  U.  S.  33  Pac.  1025.    In  some  States  it  is  now  provided  by  statute  that 
no  challenge  to  the  panel  shall  be  allowed:  State  v.  Davis,  41  Iowa  311; 
Carpenter  v.  People,  64  N.  Y.  483;  People  v.  Borgstrom,  178  N.  Y.  254; 
State  v.  Fitzhugh,  2  Ore.  227.    And  see  People  v.  Reigel,  78  N.  W.  1017. 

106  Rolland  v.  Com.,  82  Pa.  306;  Delaware  River  Road,  5  Dist.  Rep. 

5 


66  THE  GRAND  JURY. 

The  challenge  to  the  array  may  be  made  for  irregularity  in 
making  the  original  selection; 107  keeping  the  jury  wheels  in 
an  improper  place  or  in  the  custody  of  an  improper  person,  or 
in  failing  to  lock  and  seal  the  wheels  in  the  manner  provided 
by  statute; 108  irregularity  in  the  venire,  in  drawing  and  sum- 
moning the  grand  jurors,109  in  the  list110  or  in  the  return.111 
The  array  will  be  quashed  if  it  appear  that  the  persons 
charged  with  making  the  selection  of  grand  jurors  failed  to 
take  the  oath  which  it  was  prescribed  by  statute  should  be  taken 
before  any  selection  was  made.112  It  has  also  been  held  a  good 
cause  for  challenge  to  the  array  as  being  in  violation  of  the 
rights  guaranteed  by  the  Fourteenth  Amendment  to  the  Con- 
stitution of  the  United  States,  where  the  officers,  whose  duty  it 
was  to  select  and  summon  the  grand  jurors,  excluded  from  the 

(Pa.)  694;  In  re  Bridge  in  Nescopeck,  3  Luz.  Leg.  Reg.  (Pa.)  196;  State 
v.  Herndon,  5  Blackf.  (Ind.)  75. 

107  Wells  v.  State,  94  Ala.  i ;  State  v.  Howard,  10  Iowa  101 ;  Clare  v. 
State,  30  Md.  163;  Avirett  v.  State,  76  Md.  510;  Green  v.  State,  i  Tex. 
App.  82.     See  also  cases  in  note  108.    CONTRA  People  v.  Jewett,  3  Wend. 
(N.  Y.)  314,  where  it  appeared  the  jurors  selected  were  in  every  respect 
qualified.      And  see  People  v.  Petrea,  92  N.  Y.  128. 

108  Brown  v.  Com.,  73  Pa.    321 ;  Id.  76  Pa.  319 ;  Holland  v .  Com.,  82  Pa. 
306;  Ins.  Co.  v.  Adams,  no  Pa.  553;  Klemmer  v.  R.  R.  Co.,  163  Pa.  521; 
Com.  v.  Delamater,  2  Dist.  Rep.  (Pa.)  562. 

109  U.  S.  v.  Antz,i6  Fed.  Rep.  119;  Com.  v.  Salter,  2  Pears.  (Pa.)  461 ;  U. 
S.  v.  Reed,  27  Fed.  Cas.  727 ;  Freel  v.  State,  21  Ark.  212 ;  Williams  v.  State 
69  Ga.  n ;  Dixon  v.  State,  3  Iowa  416;  State  v.  Howard,  10  Id.  101 ;  State 
v.  Beckey,  79  Id.  368;  State  v.  Texada,  19  La.  Ann.  436;  State  v.  Under- 
wood, 28  N.  C.  96;  State  v.  Duncan,  Id.  98;  State  v.  Hart,  15  Tex.  App. 
202;  Whitehead  v.  Com.,  19  Gratt.  (Va.)  640;  State  v.  Cameron,  2  Chand. 
(Wis.)  172.    CONTRA  People  v.  Fitzpatrick,  30  Hun.  (N.  Y.)  493;  People  v. 
Hooghkerk,  96  N.  Y.  149. 

no  Edmonds  v.  State,  34  Ark.  720. 

in  Com.  v.  Chauncey,  2  Ashm.  (Pa.)  101. 

112  State  v.  Bradley,  32  La.  Ann.  402;  Campbell  v.  Com.,  84  Pa.  187; 
Kendall  v.  Com.,  19  S.  W.  173.  And  see  State  v.  Flint,  52  La.  Ann.  62. 
An  indictment  will  not  be  quashed  nor  will  judgment  be  arrested  in  a 
capital  case  upon  the  ground  that  although  the  jury  commissioners  had 
taken  the  oath  of  office  prescribed  by  the  Constitution  before  entering  upon 
their  duties,  it  had  not  been  filed  in  the  prothonotary's  office  as  provided 
by  the  Constitution :  Com.  v.  Valsalka,  181  Pa.  17. 


ORGANIZATION  AND  QUALIFICATIONS.  67 

panel,  members  of  the  negro  race.113  That  negroes  were  denied 
the  right  to  vote,  although  qualified  electors,  will  not  be 
ground  for  quashing  an  indictment  where  the  statute  provided 
that  grand  jurors  should  be  selected  from  the  qualified  electors 
and  the  persons  prevented  from  voting  were  lawfully  registered 
as  qualified  electors  in  the  registration  book  from  which  the  se- 
lection of  grand  jurors  was  made.114  A  white  man,  however, 
has  no  right  to  complain  where  negroes  are  excluded  by  statute 
from  the  grand  jury,  since  the  Fourteenth  Amendment  to  the 
Constitution  of  the  United  States  has  given  him  no  rights 
which  he  did  not  possess  before  its  adoption.115 

While  advantage  may  be  taken  of  any  defects  or  irregulari- 
ties in  the  foregoing  instances,  the  court  will  not  quash  the 
array  because  the  sheriff  was  not  present  during  the  entire 
time  in  which  the  selection  of  jurors  was  being  made;  that 
the  selection  was  spread  over  a  period  of  several  weeks;  that 
the  duty  of  writing  the  names  was  done  by  a  clerk  in  their 
presence  and  by  their  order;  because  of  mere  carelessness  in 
keeping  the  names  before  being  placed  in  the  wheel,  or  in  the 
keeping  of  the  wheel  after  being  properly  locked  and  sealed.1  ie 
And  it  has  also  been  held  that  the  array  will  not  be  quashed 
where  the  defendant  alleges  a  failure  to  comply  with  the  pro- 
visions of  a  statute  in  the  drawing  and  selection  of  grand  jurors 
but  neither  alleges  nor  proves  that  fraud,  corruption  or  par- 
tiality was  shown.117 

The  court  will  not  quash  an  indictment  upon  the  ground 
that  the  jury  commissioners  broke  open  the  jury  box  (the  key 
being  lost)  and  drew  the  grand  jury  therefrom;118  because 
names  drawn  were  laid  aside  in  the  erroneous  belief  that  such 


113  Neal  v.  Delaware,  103  U.  S.  370;  Carter  v.  Texas,  177  U.  S.  442; 
Whitney  v.  State,  59  S.  W.  895 ;  Rogers  v.  Alabama,  192  U.  S.  226. 

114  Dixon  v.  State,  20  So.  839. 

115  Com.  v.  Wright,  79  Ky.  22. 

116  Com.  v.  Lippard,  6  S.  &  R.  395.    And  see  Com.  v.  Valsalka,  181  Pa. 
17;  U.  S.  v.  Greene,  113  Fed  Rep.  683. 

117  Ex  Parte  McCoy,  64  Ala.  201 ;  State  v.  Champeau,  52  Vt  313.    And 
see  State  v.  Skinner,  34  Kan.  256;  State  v.  Donaldson,  43  Kan.  431. 

118.  Long  v.  State,  103  Ala.  55. 


6S  THE  GRAND  JURY. 

persons  had  removed  from  the  county  j1 19  that  the  record  does 
not  show  the  taking  of  the  oath  by  the  sheriff  and  his  deputies 
before  summoning  the  jurors;120  that  the  grand  jurors  were 
not  drawn  or  summoned  at  the  time  prescribed  by  statute,  the 
provisions  of  the  statute  being  for  the  convenience  of  the 
jurors  and  not  for  the  benefit  of  the  defendant;121  or  that  the 
grand  jurors  were  selected  from  the  registries  of  voters  in- 
stead of  the  poll  books,  the  two  lists  being  identical  as  to 
names.122 

The  challenge  to  the  panel  of  grand  jurors  is  made  by  a  mo- 
tion to  quash  the  array,  which  motion  can  only  be  made  where 
the  objection  is  to  irregularity  in  selecting  and  empaneling  the 
grand  jury  based  upon  some  one  or  more  of  the  grounds  here- 
tofore named,  and  does  not  extend  to  the  competency  of  the 
individual  juror.123  A  challenge  to  the  array  must  be  sup- 
ported by  an  affidavit  setting  forth  the  facts  upon  which  the 
challenge  is  based124  and  be  substantiated  by  evidence.126 

The  motion  may  be  made  at  any  time  before  the  defendant 
pleads  to  the  indictment,126  although  a  contrary  view  was  taken 

119  State  v.  Wilcox,  104  N.  C.  847. 

120  State  v.  Clifton,  73  Mo.  430. 

121  Johnson  v.  State,  33  Miss.  363 ;  State  v.  Mellor,  13  R.  I.  666. 

122  Downs  v.  State,  78  Md.  128. 

123  People  -v.  Southwell,  46  Calif.  141 ;  People  v.  Goldenson,  76  Id.  328 ; 
U.  S.  v .  Blodgett,  35  Ga.  336 ;  Dixon  v.  State,  3  Iowa  416 ;  Barney  v.  State, 
12  Smedes  &  M.  (Miss.)  68;  Chase  v.  State,  46  Id.  683;  People  v.  Jewett, 
3  Wend.  (N.  Y.)  314;  Ruling  v.  State,  17  Ohio  St.  583;  State  v.  Jacobs, 
6  Tex.  99;  Van  Hook  v.  State,  12  Id.  252;  State  v.  White,  17  Tex.  242; 
Reed  v.  State,  i  Tex.  App.  i ;  Green  v.  State,  Id.  82;  Smith  v.  State,  Id.  133 ; 
Cook  v.  Territory,  4  Pac.  887. 

124  McClary  v.  State,  75  Ind.  260. 

125  State  v.  Gillick,  10  Iowa  98;  Hart  v.  State,  15  Tex.  App.  202. 

126  i  Whart.  Cr.  Law  468;  Carter  v.  Texas,  177  U.  S.  442;  Wilson  v. 
People,  3  Colo,  325 ;  Miller  v.  State,  69  Ind.  284 ;  Pointer  v.  State,  89  Ind. 
255 ;  State  v.  Belvel,  89  Iowa  405 ;  State  v.  Kouhns,  103  Id.  720 ;  State  v. 
Herndon,  5  Blackf.  (Ind.)  75;  State  v.  Texada,  19  La.  Ann.  436;  State  v. 
Hoffpauer,  21  Id.  609;  State  v.  Watson,  31  Id.  379;  State  v.  Thomas,  19 
Minn.  484 ;  Clare  v.  State,  30  Md.  163 ;  State  v.  Welch,  33  Mo.  33 ;  People  v. 
Robinson,  2  Parker  Cr.  Rep.   (N.  Y.)  235;  State  v  Sears,  61  N.  C.  146; 
Com.  v.  Freeman,  166  Pa.  332 ;  Com.  v.  Shew,  8  Pa.  Dist.  Rep.  484 ;  State  v. 
Jeffcoat,  26  S.  C.  114;  Thomason  v.  State,  2  Tex.  App.  550.    Under  Texas 


ORGANIZATION  AND  QUALIFICATIONS.  <X) 

in  United  States  v.  Butler,127  where  it  was  held  that  a  chal- 
lenge to  the  array  of  the  grand  jury  cannot  be  made  after  it  is 
organized  and  enters  upon  its  duties,  but  this  ruling  has  been 
somewhat  modified.128  In  the  Federal  courts  the  law  now  is, 
that  if  the  defendant  was  arrested  and  held  in  bail,  or  in  any 
other  manner  had  knowledge  that  proceedings  would  be  insti- 
tuted against  him  before  the  session  of  the  grand  jury  at  which 
he  was  indicted,  then  he  must  move  to  quash  the  array  and 
make  his  challenge  to  the  polls  before  the  grand  jury  is  sworn ; 
but  if  he  was  indicted  without  knowledge  that  the  grand  jury 
either  was  or  intended  taking  any  action  against  him,  then  he 
might,  before  pleading  to  the  indictment,  file  a  plea  in  abate- 
ment, or  move  to  quash  the  indictment  for  the  same  reasons 
as  would  have  supported  a  motion  to  quash  the  array  or  chal- 
lenges to  the  polls  for  statutory  or  common  law  disqualifica- 
tions,129 but  not  for  favor.  The  courts  of  some  of  the  states 
have  adopted  a  similar  rule.130 

Where  a  challenge  is  made  to  the  array  but  the  objection  is 
to  only  a  portion  of  the  grand  jurors,  it  will  be  overruled  and 
the  defendant  left  to  challenge  the  individual  jurors  for 
cause.181 


Code,  the  proper  time  to  object  to  the  array  is  before  the  grand  jurors 
have  been  interrogated  as  to  their  qualifications :  Reed  v.  State,  I  Tex.  App. 
I ;  Grant  v.  State,  2  Id.  163.  An  objection  to  the  manner  of  empaneling 
cannot  be  made  after  indictment  found :  Carter  v.  State,  46  S.  W.  236. 

127  25  Fed.  Cas.  213.    And  see  People  v.  Moice,  15  Calif.  329;  People  v. 
Arnold,  Id.  476;  State  v.  Howard,  10  Iowa  101. 

128  U.  S.  v.  Gale,  109  U.  S.  65. 

129  Carter  v.  Texas,  177  U.  S.  442;  Wolfson  v.  U.  S.,  101  Fed.  Rep.  430; 
U.  S.  v.  Reeves,  27  Fed.  Cas.  750;  U.  S.  v.  Jones,  31  Fed.  Rep.  725;  U.  S. 
v.  Hammond,  26  Fed.  Cas.  99;  U.  S.  v.  Blodgett,  30  Fed.  Cas.  1157;  Agnew 
v.  U.  S.,  165  U.  S.  36 ;  U.  S.  v.  Palmer,  27  Fed.  Cas.  410. 

130  People  v.  Beatty,  14  Calif.  566 ;  People  v.  Hidden,  32  Id.  445 ;  People 
r.  Geiger,  49  Id.  643 ;  Turner  v.  State,  78  Ga.  174 ;  Mustek  v.  People,  40  111. 
268;  Mershon  v.  State,  51  Ind.  14;  Dixon  v.  State,  3  Iowa  416;  State  r. 
Hinkle,  6  Id.  380;  State  v.  Ostrander,  18  Id.  435;  State  v.  Reid,  20  Id.  413; 
State  v.  Gibbs,  39  Id.  318;  State  v.  Ruthven,  58  Id.  121 ;  Logan  v.  State,  50 
Miss.  269;  Patrick  v.  State,  16  Neb.  330;  Territory  v.  Gayton,  19  Pac.  293. 

131  U.  S.  v.  Richardson,  28  Fed.  Rep.  61 ;  U.  S.  v.  Rondeau,  16  Fed.  Rep. 
109;  People  v.  Simmons,  119  Calif,  i;  McElhanon  v.  People,  92  111.  369; 


7O  THE  GRAND  JURY. 

The  right  to  determine  the  time  and  manner  of  making  ob- 
jections to  the  qualifications  of  grand  jurors  is  vested  in  the 
legislature,  and  while  it  has  the  power  to  enact  laws  desig- 
nating the  time  and  specifying  how  such  objection  shall  be 
made,  it  has  no  power  to  wholly  take  away  the  right  of  ob- 
jecting.132 

It  is  necessary  in  order  to  make  a  challenge,  either  to  the 
array  or  to  the  polls  of  the  grand  jury,  that  the  person  pro- 
posing to  make  the  challenge  shall  show  that  he  is  under  pros- 
ecution.133. In  Iowa134  it  was  decided  that  the  challenge  could 
not  be  made  where  a  defendant  was  held  to  await  the  action 
of  a  subsequent  grand  jury,  and  the  grand  jury  then  sitting, 
of  its  own  motion  examined  into  the  offence  and  returned  an 
indictment.  At  first  sight  this  ruling  would  appear  to  deprive 
the  defendant  of  a  substantial  right,  but  a  close  inspection  of 
the  decision  shows  that  no  allegation  was  made  by  defendant 
that  the  grand  jury  which  found  the  indictment  was  not  a  legal 
body  nor  did  the  defendant  allege  the  disqualification  of  any 
member  thereof.  He  was  therefore  indicted  by  a  body  unob- 
jectionable in  every  respect  which  acted  on  its  own  motion 
and  not  on  the  return  of  the  magistrate. 

The  state's  attorney  cannot  challenge  the  panel135  although 
he  may  challenge  the  individual  jurors  for  favor  or  for 
cause.136  Where  a  challenge  is  made  by  the  state,  whether 

State  v.  Furco,  51  La.  Ann.  1082;  Foust  v.  Com.,  33  Pa.  338;  Rolland  v. 
Com.,  82  Pa.  306;  Bowen  v.  State,  24  So.  551. 

132  Palmore  v.  State,  29  Ark.  248.    And  see  People  v.  Glen,  173  N.  Y. 
395,  where  the  court  in  discussing  the  effect  of  the  words  but  in  no  other 
except  the  two  instances  specified  in  Sec.  313  of  the  Code  of  Criminal  Pro- 
cedure says:     "That  the  legislature  has  the  undoubted  right  to  regulate 
mere  matters  of  procedure  in  all  actions  and  proceedings,  both  criminal  and 
civil,  is  too  well  established  to  require  either  discussion  or  citation  of  au- 
thority.   But  it  is  equally  clear  that  no  legislative  enactment  can  be  per- 
mitted to  deprive  the  citizen  of  any  of  his  constitutional  rights." 

133  2  Hawk.  PI.  C.  c.  25,  Sec.  16;  I  Chitty  Cr.  L.  309;  Hudson  v.  State, 
i  Blackf.   (Ind.)  317;  Thayer  v.  People,  2  Doug.  (Mich.)  417.    And  see 
State  v.  Davis,  22  Minn.  423. 

134  State  v.  Chambers,  87  Iowa  i. 

135  Keitler  v.  State,  4  G.  Greene  (Iowa)  291. 

136  Challenge  to  Grand  Jury,  3  N.  J.  Law  Jour.  153.    But  see  CONTRA  as 


ORGANIZATION  AND  QUALIFICATIONS.  7 1 

authorized  or  not,  and  is  afterward  withdrawn,  this  cannot 
be  assigned  as  error  by  a  defendant.137 

The  defendant  must  express  a  desire  to  challenge;  if  he  fail 
to  demand  at  the  proper  time  the  privilege  of  exercising  this 
right  he  cannot  afterward  complain.138  If  a  time  is  designated 
by  statute  when  the  challenge  shall  be  made,  if  the  defendant 
does  not  avail  himself  of  his  right  at  that  time  he  will  be  held 
to  have  waived  the  privilege.  It  is  no  ground  for  subsequently 
pleading  in  abatement  or  moving  to  quash,  that  he  was,  at 
the  time  designated  for  challenging  the  grand  jurors,  confined 
in  prison,  friendless,  without  counsel  or  funds,  or  that  he  was 
not  apprised  of  his  right  to  challenge.  He  is  presumed  to 
know  the  law  and  abide  by  it;  if  he  should  not,  his  misfortune 
will  afford  him  no  redress.139  The  challenge  may  be  made  by 
an  attorney  as  amicus  curiae  or  as  representing  accused  per- 
sons awaiting  the  action  of  the  grand  jury.140  It  may  be  made 
by  a  defendant  at  a  later  time  than  that  fixed  by  statute  where 
he  was  confined  in  the  jail  of  another  county  and  thereby  de- 
prived of  exercising  his  right  to  challenge  at  the  proper 
time.141  If  the  defendant  declines  to  challenge  when  the  op- 
portunity is  offered,  he  thereby  waives  his  right142  and  cannot 
afterward  question  the  validity  of  the  indictment  upon  any 


to  Iowa,  where  in  the  case  of  Keitler  v.  State,  4  G.  Greene  291,  Greene,  ]., 
said:  "While  the  Code  expressly  confers  the  right  of  challenge  upon  the 
defendant,  it  is  entirely  silent  as  to  the  state  or  private  prosecutor,  and 
hence  it  must  be  inferred  that  the  object  of  the  law  was  to  limit  this  right 
exclusively  to  defendants." 

137  State  v.  Gut,  13  Minn,  341. 

138  Ross  v.  State,  i  Blackf.  (Ind.)  390;  Maher  v.  State,  3  Minn.  444; 
State  v.  Hinckley,  4  Id.  345;  State  v.  Hoyt,  13  Id.  132;  Kemp  v.  State,  II 
Tex.  App.  174;  Brown  v.  State,  32  Tex.  Cr.  Rep.  119;  Webb  v.  State,  40 
S.  W.  989;  Barber  v.  State,  46  S.  W.  233;  Barkmann  v.  State,  52  S.  W.  69. 
See  Reed  v.  State,  i  Tex.  App.  i ;  State  v.  Taylor,  171  Mo.  465 ;  Territory 
v.  Ingersoll,  3  Mont.  454. 

139  Maher  v.  State,  3  Minn.  444;  State  v.  Hinckley,  4  Id.  345;  State  v. 
Taylor,  171  Mo.  465;  Kemp  v.  State,  n  Tex.  App.  174;  Barber  v.  State,  46 
S.  W.  233 ;  Barkmann  v.  State,  52  S.  W.  69. 

140  Challenge  to  Grand  Jury,  3  N.  J.  Law  Jour.  153. 

141  Russell  v.  State,  33  Ala.  366. 

142  People  v.  Phelan,  123  Calif.  551. 


72  THE    GRAND    JURY. 

ground  going  to  the  competency  of  the  grand  jurors  and  which 
could  have  been  raised  by  challenge. 

The  exclusion  of  a  grand  juror  on  a  challenge,  or  for  cause, 
extends  only  to  the  particular  case  in  which  he  was  chal- 
lenged.143 

In  some  of  the  states,  statutes  have  been  enacted  exempting 
certain  classes  of  persons  from  jury  service.  In  many  in- 
stances exempt  persons  have  served  upon  grand  juries  and 
this  has  led  to  attacks  upon  the  indictments  found  by  such 
grand  juries  upon  the  theory  that  the  exempt  person  was  not 
a  legal  juror.  A  distinction,  however,  is  to  be  noted  between 
disqualifications  and  exemptions;  the  former  vitiate  the  pro- 
ceedings if  attacked  before  issue  joined;  the  latter  are  privil- 
eges which  may  be  waived  by  the  persons  entitled  to  the  bene- 
fit thereof  and  an  indictment  will  not  be  quashed  because  an 
exempt  person  served  as  a  grand  juror.144 

Under  a  Florida  statute  providing  that  persons  "under  sixty 
years  shall  be  liable  to  serve  and  are  hereby  made  competent 
jurors,"  a  person  over  that  age  was  held  not  a  competent 
juror.145  In  other  states  having  similar  statutes  the  weight  of 
authority  is  to  the  contrary.146 

143  State  v.   Hughes,    i   Ala.   655.     And   see   People   v.   Manahan,   32 
Calif.  68. 

144  State  v.  Brooks,  9  Ala.  9;  State  v.  Adams,  20  Iowa  486;  Slagel  v. 
Com.,  5  Ky.  Law.  Rep.  545 ;  State  v.  Stunkle,  41  Kan.  456 ;  State  v.  Quimby, 
51  Me.  395;  State  v.  Wright,  53  Me.  328;  Owens  v.  State,  25  Tex.  App.  552. 
And  see  the  cases  cited  in  note  146. 

145  Kitrol    v.    State,    9    Fla.    9.      The    decision    in    this    case    was 
rested    wholly  upon  the  words    of    the    statute,    Forward,    J.,    saying: 
"Had   the    statute   ended    where   it   says   'shall  be  liable  to  serve,'   then 
we  might  with  propriety  say,  the  statute  leaves  it  a  question  of  privilege 
with  the  juror;  but  the  statute  goes  further;  it  declares  that  such  persons 
are  competent  jurors,  &c.     It  follows  that  if  such  persons  are  competent, 
others  not  possessed  of  such  qualifications  are  not  competent. 

"It  was  evidently  the  intention  of  the  legislature  to  secure,  for  the  protec- 
tion of  the  citizen  whose  rights  might  be  affected,  a  grand  jury  composed 
of  members  possessing  certain  qualifications,  defined  by  the  law.  In  giving 
this'  statute  such  a  construction  we  carry  out  that  intention.  We  are  there- 
fore of  the  opinion  that  a  person  over  sixty  years  of  age  is  not,  under 
the  statute,  a  competent  grand  juror." 

146  Spigener  v.  State,  62  Ala.  383 ;  Loeb  v.  State,  75  Ga.  258 ;  Carter  v. 


ORGANIZATION  AND  QUALIFICATIONS.  73 

Section  1671  R.  S.  U.  S.  provides:  "All  artificers  and  work- 
men employed  in  the  armories  and  arsenals  of  the  United 
States  shall  be  exempted,  during  the  time  of  service,  from  ser- 
vice as  jurors  in  any  court." 

Objections  to  the  personal  qualifications  of  a  grand  juror 
may  be  divided  into  two  classes.147 

1.  Those  where  the  disqualification  is  imposed  by  statute  or 
by  the  common  law,  to  which  exception  may  be  taken  at  any 
time  before  the  defendant  pleads  to  the  indictment148 

2.  Those  where  the  juror  does  not  stand  indifferent  be- 
tween the  state  and  the  accused  and  may  be  challenged  for 
favor,149  but  in  this  case  unless  the  right  of  challenge  is  exer- 
cised before  the  indictment  is  found  it  cannot  thereafter  be  ex- 
ercised. 

With  the  exception  of  the  provisions  of  the  United  States 
Revised  Statutes  that  no  person  shall  be  a  grand  juror  who 
has  been  engaged  in  rebellion  against  the  United  States,150 
which  has  been  held  to  be  an  absolute  disqualification;181  or 
a  person  who  has  served  as  a  grand  juror  within  two  years182 

State,  Id.  747;  Jackson  v.  State,  76  Ga.  551 ;  Davidson  v.  People,  90  111.  221 ; 
State  v.  Miller,  2  Blackf.  (Ind.)  35;  Booth  v.  Com.,  16  Gratt.  (Va.)  519; 
State  v.  Edgerton,  69  N.  W.  280. 

147  U.  S.  v.  Williams,  28  Fed.  Cas.  666. 

148  Crowley  v.  United  States,  194  U.  S.  461 ;  State  v.  Herndon,  5  Blackf. 
(Ind.)  75;  State  v.  Griffice,  74  N.  C.  316;  McTigue  v.  State,  63  Tenn.  313. 
In  the  following  cases  it  was  held  that  the  objection  must  be  made  before 
indictment  found:  State  v.  Hamlin,  47  Conn.  95;  State  v.  Felter,  25  Iowa 
67 ;  State  v .  Harris,  38  Id  242 ;  Com.  v .  Smith,  9  Mass.  107 ;  Lacey  v.  State, 
31  Tex.  Cr.  Rep.  78;  People  v.  Jewett,  3  Wend.  (N.  Y.)  314.    This  ruling, 
however,  was  criticized  in  Newman  v.  State,  14  Wis.  393,  Judge  Cole  say- 
ing: "We  think  these  cases  are  unsound  in  reason  and  principle;  and  that 
the  current  of  authorities  is  the  other  way." 

149  Holland  v.  Com.,  82  Pa.  306 ;  Com.  v.  Cosier,  8  Luz.  Leg.  Reg.  97 : 
Com.  v.  Craig,  19  Pa.  Sup.  Ct.  8r ;  U.  S.  v.  Jones,  31  Fed.  Rep.  725;  U.  S. 
-:  White,  28  Fed.  Cas.  572 ;  State  v.  Ames,  96  N.  W.  330. 

150  R.  S.  U.  S.  Sec.  820. 

151  U.  S.  v.  Hammond,  26  Fed.  Cas.  99. 

152  R.  S.  U.  S.  Sec.  812.     For  a  similar  ruling  under  Rev.  St.  5164  of 
Ohio  see  Roth  v.  State,  3  Ohio  Cir.  Ct.  Rep.  59,  where  upon  issue  joined 
on  plea  in  abatement  the  court  excluded  defendant's  evidence  showing  that 
a  grand  juror  had  previously  served  within  two  years  from  the  time  at 


74  THE   GRAND    JURY. 

which  has  been  held  to  be  a  disqualification  which  can  only  be 
taken  advantage  of  by  challenge,153  the  grand  jurors  in  the 
Federal  courts  may  be  challenged  for  the  same  causes  as  a 
grand  juror  serving  in  the  highest  court  of  the  state  within 
which  such  Federal  court  may  be  located.164 

In  the  case  of  Crowley  v.  United  States,155  it  was  held  that 
a  disqualification  of  a  grand  juror  imposed  by  statute  is  a 
matter  of  substance  and  cannot  be  regarded  as  a  mere  defect 
or  imperfection  within  the  meaning  of  Section  1025  R.  S.  U. 
S. 

The  challenge  to  grand  jurors  for  favor  was  a  common  law 
right,166  but  if  not  exercised  before  an  indictment  is  found,  the 
right  is  wholly  gone,157  notwithstanding  a  defendant  may  have 
had  no  knowledge  that  he  was  charged  with  any  offence.  It  was 
perhaps  first  used  in  the  United  States  on  the  trial  of  Aaron 
Burr  for  treason  in  1807. 

In  that  case,  "the  grand  jury  being  reduced  to  sixteen, 
Colonel  Burr  claimed  the  right  to  challenge  for  favor.  This 
challenge  he  admitted  was  not  a  peremptory  challenge  and 
good  cause  must  be  shown  to  support  it."158 

The  authors  of  a  well  known  work  upon  juries  comment 


which  the  indictment  was  found.  The  Circuit  Court  on  appeal  held  this  to 
be  error  and  reversed  the  judgment  of  the  lower  court.  See  State  v.  Elson, 
45  Ohio  St.  648;  State  v.  Ward,  60  Vt.  142. 

153  U.  S.  v.  Reeves,  27  Fed.  Cas.  750.    In  Roth  v.  State,  3  Ohio  Cir.  Ct. 
Rep.  59,  the  appellate  court  sustained  the  objection  to  the  indictment  that  a 
grand  juror  had  served  as  a  petit  juror  within  two  years  in  violation  of 
the  Ohio  statute.    The  point  that  the  question  should  have  been  raised  by 
challenge  and  that  it  could  not  be  raised  by  plea  in  abatement  does  not 
seem  to  have  been  considered  in  this  case.    CONTRA  U.  S.  v.  Clark,  46  Fed. 
Rep.  633;  State  v.  Brown,  28  Ore.  147. 

154  U.  S.  v.  Reed,  27  Fed.  Cas.  727;  U.  S.  v.  Clune,  62  Fed.  Rep.  798. 

155  194  U.   S.  461.     In  this  case  Mr.  Justice  Harlan  discusses  in  an 
admirable  manner  the  question  as  to  when  a  plea  in  abatement  may  be  filed. 

156  But  see  contra  Sheridan's  Trial,  31  How.  St.  Tr.  567. 

157  The  challenge  must  be  made  before  the  grand  jury  is  sworn:  State 
v.  Ames,  96  N.  W.  330.    In  the  case  of  State  v .  Hamlin,  47  Conn.  95,  it  was 
doubted  whether  the  members  of  a  grand  jury  could  be  challenged  for  favor 
before  they  were  sworn. 

158  U.  S.  v.  Aaron  Burr,  25  Fed.  Cas.  55. 


ORGANIZATION  AND  QUALIFICATIONS.  75 

upon  challenges  to  grand  jurors  in  the  following  language,159 
"If  it  is  to  be  conceded  that  the  right  of  challenging  grand 
jurors  existed  at  common  law,  it  would  seem  clear  that  con- 
sistency requires  that  this  right  should  embrace  all  kinds  of 
challenge,  namely:  to  the  array,  for  cause,  and  peremptory. 
Perhaps  the  best  evidence  that  a  challenge  of  any  sort  to  grand 
jurors  is  anomalous,  is  found  in  the  fact  that  no  court  was  ever 
sufficiently  bold  to  allow  peremptory  challenges  to  grand 
jurors." 

Their  criticism,  however,  will  be  seen  to  be  without  merit 
when  we  consider  that  the  grand  jury  in  criminal  cases  is  of 
much  greater  antiquity  than  the  petit  jury,160  the  qualifica- 
tions of  which  were  clearly  defined.  If  any  person  was  re- 
turned thereon  who  was  not  qualified,  the  only  manner  in 
which  the  disqualification  could  be  made  known  and  taken  ad- 
vantage of,  was  by  an  objection  made  before  the  justices. 
A  defendant  could  not  peremptorily  challenge  a  grand  juror  in 
the  majority  of  cases  since  he  would  have  no  notice  that  they 
were  considering  an  accusation  against  him  until  presentment 
was  actually  made.  In  the  time  of  Bracton  and  Britton  peremp- 
tory challenges  were  wholly  unknown,  while  both  writers  de- 
scribe with  great  care  the  objections  which  may  be  made  to 
the  competency  of  the  jurors. 

In  1811  on  Sheridan's  Trial,161  Mr.  Justice  Osborne  refused 
to  permit  grand  jurors  to  be  challenged,  holding  that  "In  the 
case  of  a  grand  juror,  the  objection  is  to  be  relied  upon,  in  the 
form  of  a  plea.  Therefore,  I  think  that  there  does  not  exist 
by  the  common  law,  the  right  to  challenge  a  grand  juror." 
Since  that  time  this  has  been  the  uniform  English  practice. 

That  the  right  to  challenge  grand  jurors  for  cause  or  for 
favor  has  been  but  seldom  used,  cannot  be  made  an  argument 
against  its  existence.  It  is  firmly  established  in  the  common 
law  and  can  only  be  destroyed  by  legislative  enactment. 

If  a  grand  juror  is  disqualified  when  drawn  and  summoned 

159  Thompson  &  Merriam  on  Juries,  Sec,  513. 

160  Supra.  10. 

161  31  How.  St  Tr.  567. 


76  THE    GRAND    JURY. 

but  becomes  qualified  before  service  as  such,  an  indictment 
found  by  the  grand  jury  of  which  he  is  a  member  will  be  sus- 
tained;162 but  where  a  grand  juror  though  competent  when 
drawn  and  summoned  was  incompetent  when  a  true  bill  was 
found,  the  indictment  was  quashed.163 

A  grand  juror  may  be  challenged  for  favor  who  has  con- 
scientious scruples  against  capital  punishment,164  for  while  the 
grand  jury  is  usually  not  sworn  in  any  particular  cause,  it 
may  be  necessary  for  them  to  consider  a  bill  charging  a  capital 
offence.  A  similar  ruling  was  made  in  the  case  of  United 
States  v.  Reynolds  where  a  grand  juror  had  conscientious 
scruples  against  indicting  persons  charged  with  the  crime  of 
polygamy.165  In  this  case  it  was  said :  "A  person  who  upon 
his  conscience  could  not  find  indictments  under  a  law,  would 
not  make  a  good  juryman  to  enforce  that  law.  And  if  all 
members  or  a  majority  of  a  grand  jury  had  like  scruples,  that 
ancient  and  venerable  body  would  not  only  become  useless, 
but  also  an  absolute  hindrance  to  the  enforcement  of  the  law. 
A  party  having  these  conscientious  scruples  would,  if  sworn 
upon  the  grand  jury,  have  to  commit  moral  perjury.  He  upon 
oath,  admits  that  his  conscience  forbids  his  aiding  in  the  en- 
forcement of  a  specific  law,  yet  as  a  grand  juryman  he  swears 
to  go  counter  thereto,  and  enforce  the  law." 

A  challenge  may  be  made  where  a  grand  juror  has  formed 
and  expressed  an  opinion  as  to  the  guilt  or  innocence  of  the 
accused166  but  this  only  applies  where  such  grand  juror  is  not 

162  Collins  v.  State,  31  Fla.  574 ;  and  see  State  v.  Perry,  29  S.  E.  384. 

163  State  v.  Wilcox,  104  N.  C.  847. 

164  Jones  v.  State,  2  Blackf.  (Ind.)  475;  Gross  v.  State,  2  Ind.  329. 

165  U.  S.  v.  Reynolds,  I  Utah  226. 

166  Com.  v.  Clarke,  2  Browne  (Pa.)  325;  U.  S.  v.  White,  28  Fed.  Cas. 
572;  U.  S.  v.  Aaron  Burr,  25  Fed.  Cas.  55 ;  U.  S.  v.  Jones,  31  Fed.  Rep.  725 ; 
U.  S.  v.  Clune,  62  Fed.  Rep.  798;  State  v.  Hamlin,  47  Conn.  95;  State  v. 
Hinkle,  6  Iowa  380 ;  State  v.  Gillick,  7  Id.  287 ;  State  v .  Osborne,  61  Id.  330 ; 
State  v.  Shelton,  64  Id.  333;  State  v.  Billings,  77  Id.  417;  People  v.  Jewett,  3 
Wend.  (N.  Y.)  314;  In  re  Annexation  to  Borough  of  Plymouth,  167  Pa, 
612.     CONTRA  State  v.  Clarissa,  n  Ala.  57;  People  v.  District  Court,  29 
Colo.  83;  Musick  v.  People,  40  111.  268;  Com.  v.  Woodward,  157  Mass.  516. 

In  Betts  v.  State,  66  Ga.  508,  in  delivering  the  opinion  of  the  court,  Speer, 
J.,  said:     "To  hold  that  a  grand  juror  was  subject  to  challenge  propter 


ORGANIZATION  AND  QUALIFICATIONS.  77 

the  prosecutor;167  or  where  he  has  any  personal  or  financial 
interest  in  the  result  of  the  finding  of  the  grand  jury;108  or 
that  he  is  an  alien;168  or  not  a  Qualified  elector170  or  free- 
holder171 or  householder.172  But  it  has  been  held  not  to  be  a 
ground  for  challenge  that  a  grand  juror  belonged  to  a  par- 
ticular political  party  and  was  a  strong  partisan;173  that  he  had 
previously  issued  a  warrant  for  the  arrest  of  the  defendant  and 
had  expressed  an  opinion  as  to  his  guilt,174  that  a  grand  juror 
was  a  tax  payer  and  acted  on  a  grand  jury  which  found  an  in- 
dictment against  the  township  supervisors  for  neglecting  to  re- 


affcctum  would  lead  to  endless  embarrassments  in  criminal  proceedings. 
We  presume  it  rarely  occurs  that  a  crime,  especially  of  great  magnitude, 
does  not  elicit  an  expression  of  opinion  from  that  class  of  citizens  who 
make  up  the  grand  jury;  to  allow  this  expression  to  disqualify  and  vacate 
an  indictment  would  entail  endless  delay  and  embarrassment  in  the  prose- 
cution of  crime,  and  too  often  secure  immunity  to  the  criminal." 

The  Supreme  Court  of  Georgia,  however,  appears  to  have  weakened  in 
this  view  in  the  next  year,  since  in  the  cases  of  Williams  v.  State,  69  Ga.  II 
and  Lee  v.  State,  Id.  705,  the  court  intimated  that  if  a  defendant  could  ex- 
cept to  a  grand  juror  at  all  on  the  ground  that  he  had  formed  and  ex- 
pressed an  opinion,  it  should  be  done  before  a  true  bill  was  found. 

167  The  prosecutor  is  disqualified  by  statute  to  act  as  a  grand  juror: 
State  v .  Holcomb,  86  Mo.  371 ;  State  v.  Williamson,  106  Mo.  162 ;  State  v. 
Millain,  3  Nev.  409 ;  People  v.  Smith,  76  N.  W.  124. 

168  Holland  v.  Com.,  82  Pa.  306;  Delaware  River  Road,  5  Dist.  Rep. 
(Pa.)  694;  In  re  Bridge  in  Nescopeck,  3  Luz.  Leg.  Reg.  (Pa.)  410;  In  re 
County  Bridge,  3  Luz.  Leg.  Reg.  (Pa.)  196;  Fisher  v.  State,  93  Ga.  309.  But 
see  State  v.  Brainerd,  56  Vt.  532. 

169  Supra.  63,  64,  note  97. 

170  Supra.  63. 

171  State  v.  Bleekley,  18  Mo.  428.    Supra.  6a. 

172  Supra.  62. 

173  U.  S.  v.  Eagan,  30  Fed.  Rep.  608. 

174  U.  S.  v.  Belvin,  46  Fed.  Rep.  381 ;  U.  S.  v.  Williams,  28  Fed.  Cas. 
666;  In  re  Tucker,  8  Mass.  286.    CONTRA  People  v.  Smith,  76  N.  W.  124. 
In  i  Whart.  Cr.  Law,  Sec.  469,  the  ruling  as  set  forth  in  the  text  is  severely 
criticised.    But  while  it  is  true  that  if  the  accuser  corruptly  causes  himself 
to  be  placed  upon  the  grand  jury  a  challenge  should  be  sustained  and  the 
panel  purged,  yet  if  he  was  returned  without  his  agency  or  instigation,  the 
challenge  should  not  be  sustained,  for  as  a  lawful  member  of  that  body  a 
presentment  could  be  made  upon  knowledge  which  he  might  communicate 
to  them. 


78  THE   GRAND   JURY. 

pair  a  township  road  ;175  that  he  was  the  magistrate  who  com- 
mitted the  defendant;178  that  he  was  a  civil  officer177  or  special 
police  officer,178  or  that  he  was  a  member  of  an  association  the 
object  of  which  was  to  detect  crime  ;179  that  he  has  subscribed 
funds  for  the  suppression  of  crime;180  or  that  his  name  was 
absent  from  the  last  assessment  roll  of  the  county  from  which 
he  is  summoned.181 

Where  the  prosecutor  is  returned  upon  the  grand  jury  with- 
out his  agency  or  instigation  the  better  opinion  is  that  the 
challenge  for  favor  should  not  be  sustained  for  as  a  lawful 
member  of  that  body  a  presentment  could  be  made  upon  knowl- 
edge which  he  might  communicate  to  them  as  to  this  par- 
ticular offence. 

Where  a  grand  juror  admits  that  he  has  formed  an  opinion 
as  to  the  guilt  or  innocence  of  the  accused  but  declares  that  his 
opinion  would  not  preclude  him  from  passing  on  the  question 
impartially  as  presented  by  the  evidence,182  or  where  the  evi- 
dence of  the  alleged  forming  and  expressing  of  opinion  is  not 
clear,  a  challenge  will  not  be  sustained.183 

If  a  case  be  submitted  to  the  grand  jury  which  considered  a 
former  bill  against  the  same  defendant,  the  question  at  once 
arises  whether  or  not  they  are  competent  to  again  pass  upon 
the  question  by  reason  of  their  expressed  opinion  as  to  the 
guilt  of  the  accused  in  finding  the  former  indictment.  There 
are  but  few  decisions  upon  this  point  and  the  better  view  seems 
to  be  that  the  grand  jurors  may  be  challenged  upon  the  ground 

175  Com.  -v.  Bradney,  126  Pa.  199;  Penna.  Act  April  16,  1840,  Sec.  6,  P. 
L.  411 ;  and  see  State  -u.  Newfane,  12  Vt.  422. 

176  U.  S.  v.  Palmer,  27  Fed.  Cas.  410;  State  v.  Chairs,  68  Tenn.  196. 

177  Com.  v.  Rudd,  3  Ky.  Law  Rep.  328;  Com.  v.  Pritchett,  74  Ky.  277; 
Owens  v.  State,  25  Tex.  App.  552;  Com.  v.  Strother,  i  Va.  Cas.  186. 

178  Com.  v.  Hay  den,  163  Mass.  453. 

179  Musick  v.  People,  40  111.  268.     See  Com.  v.  Craig,  19  Pa.  Superior 
Ct.  81. 

180  Koch  v.  State,  32  Ohio  St.  353. 

181  U.  S.  v.  Benson,  31  Fed.  Rep.  896;  State  v.  Harris,  97  N.  W.  1093. 

182  State  v.  Hinkle,  6  Iowa  380;  State  v.  Shelton,  64  Id.  333;  State  v. 
Billings,  77  Id.  417. 

183  State  v.  Billings,  77  Iowa  417. 


ORGANIZATION  AND  QUALIFICATIONS.  79 

that  they  have  formed  and  expressed  an  opinion  upon  the  mat- 
ter to  come  before  them.184 

The  reason  for  this  is  best  expressed  in  the  language  used 
by  Stockton,  J.,  in  the  case  of  State  v.  Gillick  :18B  "The  juror 
challenged  was  as  much  disqualified  from  taking  any  part  in 
the  consideration  of  the  charge  against  the  defendant,  by  rea- 
son of  the  opinion  formed  by  him  from  the  evidence  given  un- 
der oath  in  the  grand  jury  room,  and  by  his  action  thereon, 
as  if  that  opinion  had  been  formed  from  rumor,  or  had  been 
induced  by  malice  or  ill-will.  It  is  the  preconceived  opinion, 
that  renders  a  grand  jury  incompetent,  and  not  the  sources 
from  which  that  opinion  is  formed  or  derived.  A  juror  who 
has  formed  or  expressed  an  opinion,  is  set  aside,  because  he  is 
supposed  not  to  be  indifferent  to  the  result  of  the  matter  to  be 
tried.  Such  an  opinion,  in  the  presumption  of  law,  is  not  less 

184  In  State  v.  Osborne,  61  Iowa,  330,  this  question  arose  under  Section 
4261  of  the  Code  and  was  considered  at  length  by  Beck,  J.,  who  says :  "In 
the  absence  of  any  statute  so  providing,  the  prisoner  ought  to  be  permitted 
to  exercise  the  right  to  challenge  the  jurors  at  any  time  before  they  con- 
sider the  case,  upon  information  gained  that  they  are  lawfully  subject  to 
challenge  on  account  of  matters  arising  after  a  prior  challenge  had  been 
made.  A  different  rule  would  defeat  the  very  purpose  of  the  statute,  name- 
ly, to  secure  a  fair  and  unprejudiced  grand  jury,  to  whom  the  charge  shall 
be  submitted.  In  the  case  before  us,  after  the  first  indictment  was  set 
aside,  the  rights  of  the  prisoner  were  no  other  or  different  from  what  they 
were  when  the  first  challenge  was  made.  He  had  a  right  to  an  unpreju- 
diced grand  jury.  The  proceedings  resulting  in  the  first  indictment  stood 
for  nothing..  The  prisoner  should  have  been  permitted  to  fully  exercise 
his  right  to  challenge  the  jurors.  There  was  ground  for  believing,  nay,  for 
knowing,  that  the  jurors  had  formed  and  expressed  an  opinion  of  the  pris- 
oner's guilt,  for  they  had  heard  the  evidence,  and  upon  their  oaths  re- 
turned an  indictment  against  him.  But,  it  is  said,  they  gained  the  know- 
ledge of  the  facts,  and  expressed  their  opinion  of  his  guilt,  acting  as  grand 
jurors.  This  does  not  change  the  case.  Suppose  one  of  the  grand  jurors 
had  been  upon  a  coroner's  jury,  or  had  been  upon  a  jury  before  whom  an 
accomplice  had  been  tried  and  convicted.  In  each  case  the  juror  would 
have  gained  knowledge  of  the  facts,  and  expressed  an  opinion  of  the  pris- 
oner's guilt,  under  circumstances  substantially  the  same  as  existed  in  this 
case.  It  will  not  be  claimed  that  he  would  not  be  the  subject  of  challenge. 
It  is  also  said  that  no  prejudice  resulted  from  refusing  defendant  the  right 
to  make  the  challenge,  as  he  was  convicted,  and  thus  shown  to  be  guilty ; 
and  that  we  must  presume  another  grand  jury  would  have  found  an  in- 


8O  THE    GRAND    JURY. 

the  effect  of  partiality  and  prejudice  operating  on  the  mind  of 
the  juror,  than  it  is  the  efficient  agent  to  produce  such  parti- 
ality and  prejudice  on  his  mind,  perhaps  without  his  conscious- 
ness." 

Upon  this  principle  a  plea  in  abatement  has  been  sustained 
where  it  was  made  to  appear  that  one  of  the  grand  jurors  who 
found  the  indictment  had  served  on  a  petit  jury  which  form- 
erly convicted  the  defendant  of  the  same  offence.186  A  pre- 
cisely opposite  view  was  taken  in  a  case  where  one  of  the  grand 
jurors  had  been  a  member  of  the  coroner's  jury  which  found 
that  the  deceased  was  murdered  by  the  accused.187 

An  indictment  will  not  be  set  aside  upon  the  ground  that  a 
grand  juror  was  related  to  the  prosecutor  by  blood  or  mar- 
riage,188 although  defendant  could  have  availed  himself  of  this 
fact  by  challenge  before  indictment  found.189 

dictment  against  him.  The  facts  stated  may  all  be  admitted,  but  we  can- 
not exercise  a  presumption  of  a  prisoner's  guilt  in  order  to  sustain  proceed- 
ings resulting  in  his  conviction.  Such  a  rule  would  in  effect  declare  that  a 
verdict  cures  all  violations  of  law  and  irregularities  in  criminal  trials.  In 
People  v.  Hansted,  135  Calif.  149.  it  was  said  by  McFarland,  J. :  "It  is 
clear  that  grand  jurors  who  have  examined  the  charge  against  one  accused 
of  a  crime,  and  found  and  presented  an  indictment  again?t  him  for  such 
crime,  thus  officially  declaring  their  conviction  upon  the  evidence  before 
them  lhat  he  is  probably  guilty,  are  disqualified  from  again  passing  upon  a 
second  charge  against  him  for  the  same  offence."  But  see  People  v. 
Northey,  77  Calif.  618. 

185  7  Iowa  287.     Compare  with  the  language  of  the  court  in  People  v. 
Northey,  77  Calif.  618. 

186  U.  S.  v.  Jones,  31  Fed.  Rep.  725.    And  see  People  v.  Landis,  139 
Calif.  426.    The  case  of  State  v.  Cole,  19  Wis.  129,  raises  this  question  and 
presents  a  contrary  ruling,  but  no  reason  is  given  for  the  ruling  and  the 
judgment  was  reversed  on  other  grounds.    And  see  State  v.  Wilcox,  104 
N.  C.  847,  where  the  court  held  that  the  grand  juror  was  competent  and 
was  bound  by  his  oath  to  communicate  to  his  fellow  jurors  the  knowledge 
he  had  acquired  while  serving  upon  the  petit  jury. 

187  Betts  v.  State,  66  Ga.  508 ;  Lee  v.  State,  69  Ga.  705.    It  is  interesting 
to  note  that  the  ruling  in  both  of  these  cases  is  at  variance  with  the  illus- 
tration used  by  Judge  Beck  in  his  opinion  in  the  case  of  State  v.  Osborne, 
61  Iowa  330.    Supra,  page  79.    Note  184. 

188  State  v.  Russell,  90  Iowa  569;  State  v.  Sharp,  no  N.  C.  604;  State  v. 
Easter,  30  Ohio  St.  542 ;  Simpson  v .  State,  34  S.  E.  204.    And  see  State  v. 
McNinch,  12  S.  C.  89 ;  Shope  v.  State,  32  S.  E.  140. 

189  Lascelles  v.  State,  90  Ga.  347. 


ORGANIZATION  AND  QUALIFICATIONS.  8l 

In  Tennessee,189*  Section  5085  of  the  Code,  provides  that  if 
any  member  of  the  grand  jury  is  connected  by  blood  or  mar- 
riage with  the  person  charged,  he  shall  not  be  present  or  take 
part  in  the  consideration  of  the  charge.  A  defendant  pleaded 
in  abatement  that  one  of  the  grand  jurors  was  related  to  him 
within  the  prohibited  degree  by  affinity  and  the  plea  was  sus- 
tained and  the  indictment  quashed.  The  appellate  court, 
however,  reversed  the  judgment  of  the  court  below  and  in  its 
opinion  said :  "But  the  provision  is  merely  directory,  as  the 
next  section,  which  provides  for  supplying  the  vacancy  during 
the  investigation,  clearly  shows.  No  doubt,  either  the  state  or 
the  defendant  might  make  the  objection,  and  it  is  the  duty  of 
the  juror  to  conform  to  the  requirement.  But  if,  through  inad- 
vertence, a  relation  or  connection  of  the  person  charged  does 
actually  participate  in  the  finding,  it  is  not  seen  how  his  rela- 
tionship could  have  prejudiced  such  person." 

That  one  of  the  grand  jurors  making  presentment  of  an  in- 
dictment for  not  making  and  opening  a  road  through  a  town 
was  a  taxable  inhabitant  of  the  town,  cannot  be  used  as  an  ob- 
jection to  the  validity  of  the  indictment  by  the  town  as  a  defen- 
dant, since  his  interest  would  be  favorable  to  the  defendant.180 

A  person  is  not  disqualified  from  serving  as  a  grand  juror 
by  reason  of  his  absence  from  his  domicile,  there  being  no  in- 
tention to  change  the  domicile;101  but  should  he  remove  after 
being  summoned  but  before  serving  as  a  grand  juror,  he 
thereby  becomes  incompetent  to  act.192 

A  grand  juror  is  not  disqualified  because  of  his  religious  be- 
lief.193 

When  a  challenge  was  made  for  favor  it  has  been  held  to 
be  against  public  policy  to  permit  the  grand  juror  to  be  ex- 
amined upon  his  voir  dire  to  establish  the  favor,  but  the  court 

189*  State  v.  Maddox,  i  Lea  (Tenn.)  671. 

190  State  v.  Newfane,  12  Vt.  422.    See  Com.  v.  Ryan,  5  Mass.  90;  Com. 
v.  Brown,  147  Mass.  585. 

191  State  v.  Alexander,  35  La.  Ann.  noo;  Harless  v.  U.  S.,  I  Morris 
(Iowa)  169;  State  v.  Carlson,  62  Pac.  1016. 

192  State  v.  Wilcox,  104  N.  C.  847;  and  see  State  v.  Kouhns,  103  Iowa 
720. 

193  Com.  v.  Smith,  9  Mass.  107;  State  v.  Wilson,  2  McCord,  (S.  C.)  393- 

6 


82  THE   GRAND   JURY. 

was  willing  that  it  should  be  proved  by  other  evidence.194  "A 
due  regard  for  public  policy  as  well  as  for  the  interests  of  jus- 
tice and  the  nature  of  the  inquiry,  forbids  that  grand  jurors 
should  be  polled  and  tried  in  this  manner.  If  the  prisoner 
have  evidence  to  purge  the  panel,  let  him  produce  it."195 

That  this  was  the  law  was  recognized  by  Colonel  Burr196 
upon  his  trial,  who,  after  announcing  his  intention  to  challenge 
for  favor  said  to  the  Chief  Justice  (Marshall)  :  "It  would,  of 
course,  be  necessary  to  appoint  triers  to  decide,  and  before 
whom  the  party  and  the  witnesses  to  prove  or  disprove  the 
favor  must  appear."  The  same  method  of  determining  a  chal- 
lenge for  favor  was  pursued  in  Pennsylvania.197 

While  peremptory  challenges  to  grand  jurors  are  not  al- 
lowed,199 a  practice  bordering  closely  upon  this  was  permitted 

194  Brown  v.  Com.,  76  Pa.  319.    And  see  Territory  v.  Hart,  14  Pac.  768. 
The  Act  of  Congress  of  March  22,  1882,  relating  to  the  Territory  of  Utah 
provided  that  in  prosecutions  for  bigamy,  polygamy  or  unlawful  cohabita- 
tion under  any  statute  of  the  United  States  it  should  be  cause  for  challenge 
that  a  proposed  juror  was  himself  living  in  the  practice  of  bigamy,  poly- 
gamy or  unlawful  cohabitation  with  more  than  one  woman,  and  allowing 
the  juror  to  be  examined  upon  his  oath  as  to  such  matters.    This  was  held 
to  apply  to  grand  jurors  in  Clawson  v.  U.  S.,  114  U.  S.  477.    In  the  case 
of  State  v.  Hughes,  i  Ala.  655,  the  court  refused  to  allow  counsel  for  de- 
fendant to  ask  grand  jurors  before  they  were  sworn  "whether  they  had 
formed  and  expressed  an  opinion  as  to  the  guilt  or  innocence  of  the  pris- 
oner" 

195  Brown  v.  Com.  76  Pa.  319.    In  Com.  v.  Craig,  19  Pa.  Superior  Ct. 
81,  upon  motion  to  quash  upon  the  ground  of  favor,  the  court  permitted 
the  examination  of  the  grand  juror  whom  it  was  alleged  did  not  stand  in- 
different.   The  grand  jurors  were  examined  on  their  voir  dire:     State  v. 
Billings,  77  Iowa  417;  Jones  v.  State,  2  Blackf.  (Ind.)  475. 

196  U.  S.  v.  Aaron  Burr,  25  Fed.  Cas.  56. 

197  Com.  v.  Clarke,  2  Browne  (Pa.)  323. 

199  Jones  v.  State,  2  Blackf.  (Ind.)  475.  In  this  case  Stevens,  J.  said: 
"There  is  no  statute  or  sanctioned  practice  in  this  state,  authorizing 
a  prisoner  to  peremptorily  challenge  grand  jurors;  and  it  is  believed  that 
no  such  practice  exists  in  England.  The  common  law  requires  grand 
jurors  to  be  good  and  lawful  freeholders,  and  the  English  statutes  require 
several  additional  qualifications ;  and  Chitty  in  his  treatise  on  criminal  law, 
when  speaking  of  these  qualifications  of  grand  jurors,  says  that  a  prisoner, 
who  is  at  the  time  under  a  prosecution  for  an  offence  about  to  be  sub- 
mitted to  the  consideration  of  a  grand  jury,  may  challenge  any  of  the 


ORGANIZATION  AND  QUALIFICATIONS.  83 

upon  Lewis'  trial200  where  the  attorney  for  the  Crown  took  ex- 
ception to  some  of  the  grand  jurors  and  stood  them  aside,  the 
court  permitting  it,  although  it  had  previously  in  another 
case  refused  to  permit  such  a  proceeding.  A  somewhat  simi- 
lar proceeding  was  taken  in  a  case  in  a  United  States  court,201 
the  court  of  its  own  motion  excusing  certain  of  the  grand 
jurors  and  substituting  other  qualified  persons  in  their  stead. 
No  objection  was  made  to  this  procedure  by  counsel  for  de- 
fendant although  they  were  then  present,  but  the  question  be- 
ing afterward  raised  the  court  sustained  its  action. 

This  action,  however,  is  open  to  severe  criticism  and  such 
a  practice  should  not  be  permitted  to  continue.  If  upheld,  it 
places  within  the  power  of  the  court  the  ability  to  so  mold 
the  grand  jury  that  it  may  be  deprived  of  its  independence  of 
action.202  The  statutes  and  the  common  law  prescribe  the 
way  in  which  a  grand  jury  shall  be  constituted  and  what  shall 
disqualify  any  person  from  acting  as  a  grand  juror,  and  it 
would  seem  that  where  there  is  no  statute  giving  the  court 
the  power  on  its  own  motion  to  remove  persons  who  are  duly 
qualified  in  order  to  substitute  others,  such  an  act  is  done  with- 
out warrant  of  law,  and  a  grand  jury  thus  made  up  is  ille- 
gally constituted. 

The  general  tendency,  however,  is  to  preserve  to  grand 

grand  jurors,  who  lacks  any  of  these  qualifications  required  by  the  com- 
mon and  statute  laws.  Chitty  refers  to  Hawkins'  Pleas  of  the  Crown, 
where  it  is  said  that  a  challenge  to  grand  jurors  is  very  properly  limited 
to  persons  who  are,  at  the  time,  under  a  prosecution  for  an  offence  about 
to  be  submitted  to  a  grand  jury.  By  these  authorities  it  is  clear,  that  in 
England,  these  challenges  are  limited  to  one  certain  class  of  cases,  and 
then  only  for  cause." 

200  7  How.  St.  Tr.  249. 

201  U.  S.  v.  Jones,  69  Fed  Rep.  973.    And  see  also  Territory  v.  Earth, 
15  Pac.  673;  People  v.  Hidden,  32  Calif.  445;  State  v.  Drogmond,  55  Mo. 
87.    In  State  v.  Bowman,  73  Iowa  no,  where  the  grand  jury  was  empaneled 
in  the  absence  of  several  persons  drawn  to  serve  as  jurors,  they  failing  to 
be  present  by  reason  of  the  judge  stating  to  them  that  they  would  not  be 
wanted  and  an  indictment  was  found  in  their  absence,  the  court  held  that 
the  grand  jury  was  illegally  constituted  and  the  indictment  was  quashed. 
And  see  Baker  v.  State,  23  Miss.  243. 

202  O'Byrne  v.  State,  51  Ala.  25;  Finley  v.  State,  61  Ala.  201 ;  Keitler  v. 
State,  4  G.  Greene  (Iowa)  291 ;  Portis  v.  State,  23  Miss.  578. 


84  THE    GRAND    JURY. 

jurors  the  right  to  act  unless  in  some  manner  they  are  not  com- 
petent. Thus  where  a  district  attorney  in  good  faith  but 
through  a  misunderstanding  excluded  a  legally  competent 
grand  juror,  who  had  been  duly  sworn,  from  the  grand  jury 
room  during  the  consideration  of  a  certain  case  by  the  grand 
jury,  the  court  sharply  criticised  the  action  of  the  district  at- 
torney.203 

In  England  the  rule  is  now  firmly  established  that  the  court 
cannot  lawfully  order  a  grand  juror  to  withdraw  himself 
from  the  panel  in  a  particular  case,204  and  inasmuch  as  all  ob- 
jections to  the  qualifications  of  a  grand  juror  must  be  taken 
by  plea  in  abatement205  this  rule  would  seem  to  apply  even 
although  the  juror  was  not  competent. 

It  is  ordinarily  within  the  province  of  the  court  to  excuse 
a  grand  juror  upon  application  and  showing  sufficient  rea- 
son why  he  should  not  serve.206  And  where  the  record  does 
not  show  the  reason  for  excusing  such  person,  it  will  be  pre- 
sumed that  the  excuse  was  sufficient.207  The  court  may  of  its 
own  motion  dismiss  a  grand  juror  for  cause208  and  may  fill 
the  vacancy  with  a  qualified  juror209  or  a  talesman.210  The 

203  Com.  v.  Bradney,  126  Pa.  199. 

204  Bac.  Abr.  Indict.  C.    In  Vermont,  in  the  case  of  In  re  Baldwin,  2 
Tyler  473,  the  Supreme  Court  held  that  they  had  no  power  to  order  a 
grand  juror  to  withdraw  from  the  panel  in  any  particular  case,  although 
it  was  one  of  a  complaint  against  himself. 

205  Supra.  75. 

206  Denning  v.  State,  22  Ark.  131 ;  People  v.  Hidden,  32  Calif.  445 ;  Mills 
v.  State,  76  Md.  274;  Portis  v.  State,  23  Miss.  578;  State  v.  Bradford,  57 
N.  H.  188;  State  v.  Ward,  60  Vt.  142;  State  v.  Schieler,  37  Pac.  272.    But 
see  CONTRA  Smith  v.  State,  19  Tex.  App.  95;  Watts  v.  State,  22  Id.  572; 
Drake  v.  State,  25  Id.  293 ;  Trevinio  v.  State,  27  Id.  372. 

207  Burrell  v.  State,  129  Ind.  290;  Cotton  v.  State,  31  Miss.  504,  and  see 
Wallis  v.  State,  54  Ark.  6n. 

208  In  re  Ellis,  8  Fed  Cas.   548;   People  v.  Leonard,   106  Calif.  302; 
State  v.  Bradford,  57  N.  H.  188 ;  State  v .  Jacobs,  6  Tex.  99 ;  Com.  v.  Bur- 
ton, 4  Leigh.  (Va.)  645;  State  v.  Brooks,  48  La.  Ann.  1519;  Territory  v. 
Barth,  15  Pac.  673.    CONTRA  Keitler  v.  State,  4  G.  Greene  (Iowa)  291. 

209  Denning  v.  State,  22  Ark.  131 ;  State  v.  Reisz,  48  La.  Ann.  1446;  Mill 
v.  State,  76  Md.  274 ;  State  v  .Wilson,  85  Mo.  134 ;  State  v.  Thomas,  61  Ohio 
St.  444 ;  Jetton  v.  State,  19  Tenn.  192 ;  People  v.  Lee,  2  Utah  441 ;  Com.  v. 
Burton,  4  Leigh  (Va.)  645.  In  Peters  v.  State,  08  Ala.  38;  the  court  directed 


ORGANIZATION  AND  QUALIFICATIONS.  85 

grand  jury  as  thus  constituted  is  a  legal  body,  although  the 
foreman  be  not  again  appointed  nor  the  oath  re-administered 
to  him  or  to  the  other  members  as  a  body.211 

In  Arkansas  where  more  than  sixteen  persons  were  se- 
lected and  summoned  and  the  record  showed  that  only  six- 
teen were  empaneled,  it  was  held  that  it  would  be  presumed 
that  the  grand  jurors  in  excess  of  the  legal  number  were  ex- 
cused from  serving.212 

After  the  grand  jury  has  been  sworn,  but  before  indictment 
found,  a  defendant  may  still  either  challenge  the  array  or  the 
polls218  (except  in  states  where  the  statute  otherwise  pro- 
vides) for  the  same  causes  and  with  the  same  effect  as  if  the 
right  of  challenge  had  been  exercised  before  the  oath  was  ad- 
ministered,214 reasonable  excuse  being  shown  in  the  Federal 
courts  for  failure  to  act  before  the  grand  jury  was  fully  organ- 
ized.216 

After  the  defendant  has  been  indicted  he  may  except  to  the 
array  or  to  the  individual  jurors  for  any  cause  which  would 
disqualify  except  for  favor.216  In  the  Federal  courts  this 

the  sheriff  to  add  two  new  members  to  the  jury  without  first  making  an 
order  discharging  two  who  were  incapacitated  by  illness  from  serving 
and  it  was  held  that  the  grand  jury  was  illegally  constituted.  And  see 
Ramsey  v.  State,  21  So.  209;  Portis  v.  State,  23  Miss.  578. 

210  Germolgez  v.  State,  99  Ala.  216;  State  v.  Fowler,  52  Iowa  103;  State 
v.  Ward,  60  Vt.  142. 

211  State  v.  Thomas,  61  Ohio  St  444. 

212  Wallis  v.  State,  54  Ark.  611. 

213  People  v.  Colmere,  23  Calif.  632;  State  v.  Hamlin,  47  Conn.  95;  U. 
S.  v.  Blodgett,  35  Ga.  336;  Hudson  v.  State,  i  Blackf.  (Ind.)  317;  Ross  r. 
State,  Id.  390;  Jones  v.  State,  2  Id.  475;  Mershon  v.  State,  51  Ind.  14; 
Com.  v.  Smith,  9  Mass.  107;  Com.  v.  Clark,  2  Browne  (Pa.)  323;  Lacy  r. 
State,  31  Tex.  Cr.  Rep.  78;  Territory  v.  Hart,  14  Pac.  768.    See  State  v. 
Clarissa,  n  Ala.  57. 

214  State  v.  Hamlin,  47  Conn.  95. 

215  U.  S.  v,  Blodgett,  30  Fed.  Cas.  1157;  Agnew  v.  U.  S.,  165  U.  S.  36. 

216  Penalty  v.  State,  12  Ark.  630;  Barney  v.  State,  12  Smedes  &  M. 
(Miss.)  68;  State  v.  Larkin,  11  Nev.  314;  Rolland  v.  Com.,  82  Pa.  306. 
CONTRA  Lee  v.  State,  45  Miss.  114.    In  Com.  v.  Smith,  9  Mass.  107,  it  was 
held  that  after  indictment  filed,  no  objection  of  irregularity  in  the  em- 
paneling of  the  grand  jury  would  be  received  as  a  plea  to  such  indictment. 
In  Boyington  v.  State,  2  Port  (Ala.)   100,  it  was  held  too  late  to  except 
to  the  qualifications  of  a  grand  juror  after  indictment  filed  and  accepted 
in  court. 


86  THE   GRAND   JURY. 

right  is  limited  to  those  cases  where  the  defendant  shows  good 
cause  why  he  could  not  raise  the  objection  either  before  the 
grand  jury  was  sworn  or  before  it  found  the  indictment.217 
The  objection,  however,  cannot  be  raised  by  challenge  either  to 
the  array  or  to  the  polls  but  must  be  raised  by  a  motion  to 
quash  the  indictment,  and  in  the  Federal  courts  may  also  be 
raised  by  a  plea  in  abatement,218  or  by  leave  of  court  a  de- 
fendant may  file  two  or  more  pleas  in  abatement.219  It  cannot 
be  raised  by  demurrer  unless  the  defect  appears  upon  the  face 
of  the  indictment.220 

The  accused  cannot  afterward  "plead  in  abatement  the  same 
grounds  or  facts  upon  which  he  has  challenged  the  array  of  the 
grand  jury.221 

The  courts  do  not  look  with  favor,  at  the  present  time,  upon 
objections  to  the  grand  jury  which  are  based  merely  upon  the 
ground  of  irregularity  in  its  organization,  the  defendant  hav- 
ing suffered  no  prejudice  thereby,222  and  the  Federal  courts  are 
averse  to  quashing  an  indictment  upon  such  a  ground  and  will 
not  do  so  unless  the  defendant  take  advantage  of  such  irregu- 
larity at  each  stage  of  the  proceedings.223 


217  Carter  v.  Texas,  177  U.  S.  442;  Wolfson  v.  U.  S.,  101  Fed.  Rep.  430; 
U.  S.  v.  Reeves,  27  Fed.  Cas.  750;  U.  S.  v.  Jones,  31  Fed.  Rep.  725;  Agnew 
v.  U.  S.,  165  U.  S.  36. 

218  Carter  v.  Texas,  177  U.  S.  442;  U.  S.  v.  Reeves,  27  Fed.  Cas.  750; 
U.  S.  v.  Gale,  109  U  S.  65 ;  Agnew  v.  U.  S.,  165  U.  S.  36.    And  see  Mer- 
shon  v.  State,  51  Ind.  14 ;  State  v.  Seaborn,  15  N.  C.  305 ;  State  v.  Ward, 
60  Vt.  142.    In  Lee  v.  State,  45  Miss.  114,  it  was  held  that  the  compe- 
tency or  qualifications  of  the  grand  jury  cannot  be  questioned  by  plea  in 
abatement,  the  empaneling  being  conclusive  as  to  these  facts.  And  see  Dur- 
rah  v.  State,  44  Miss.  789;  Head  v.  State;  Id.  731.     See  also  Supra.  64. 
Note  loo. 

219  U.  S.  v.  Richardson,  28  Fed.  Rep.  61. 

220  State  v.  Brandon,  28  Ark.  410;  Williams  v.  State,  60  Ga.  88;  Jack- 
son v.  State,  64  Ga.  344 ;  State  v.  Hart,  29  Iowa  268 ;  State  v.  Vincent,  91 
Md.  718;  Com.  v.  Church,  i  Pa.  105;  Com.  v.  Smith,  27  S.  W.  810;  Fisher 
v.  U.  S.,  31  Pac.  195. 

221  Meiers  v.  State,  56  Ind.  336;  McClary  v.  State,  75  Ind.  260. 

222  Woodward  v.  State,  33  Fla.  508 ;  State  v.  Glascow,  59  Md.  209 ;  Cox 
v.  People,  80  N.  Y.  500. 

223  Wolfson  v.  U.  S.,  101  Fed.  Rep.  430;  U.  S.  v.  Eagan,  30  Fed.  Rep. 
608. 


ORGANIZATION  AND  QUALIFICATIONS.  87 

Where  the  defendant  before  pleading  to  the  indictment  does 
not  object  to  the  array  or  to  the  polls  of  the  grand  jury,  he 
will  be  held  to  have  waived  his  right  and  cannot  afterward 
raise  the  objection  upon  a  motion  in  arrest  of  judgment,224 
and  it  is  too  late  to  move  to  quash  the  array  after  the  defen- 
dant has  been  arraigned,  pleaded  "not  guilty"  and  four  jury- 
men have  been  selected.225 

It  has  been  held  that  the  presence  of  one  disqualified  per- 
son upon  the  panel  of  grand  jurors  will  vitiate  the  indictment 
found  by  it,226  but  this  is  subject  to  the  qualification  that  the 
defendant  had  no  opportunity  to  challenge  the  disqualified 
juror  before  indictment  found,  and  raises  the  objection  either 
by  motion  to  quash  or  by  plea  in  abatement  before  pleading  to 
the  indictment.  After  a  trial  on  the  merits,  the  objection  can- 
not be  raised  on  a  motion  in  arrest  of  judgment.227 

224  State  v.  Clarissa,  11  Ala.  57;  Horton  v.  State,  47  Id.  58;  Sanders  v. 
State,  55  Id.  183;  Shropshire  v.  State,  12  Ark.  190;  Penalty  v.  State,  Id.  630; 
Stewart  v.  State,  13  Id.  720;  Dixon  v.  State,  29  Id.  165;  Wright  v.  State, 
42  Id.  94;  Carpenter  v.  State,  62  Id.  286;  People  v.  Hidden,  32  Calif.  445; 
Terrell  v.  State,  9  Ga.  58 ;  Miller  v.  State,  69  Ind.  284 ;  State  v.  Wash.  33  La. 
Ann.  896 ;  State  v.  Griffin,  38  Id.  502 ;  McQuillen  v.  State,  8  Smedes  &  M. 
(Miss.)  587;  State  v.  Borroum,  25  Miss.  203;  Green  v.  State,  28  Id.  687; 
State  v.  Smallwood,  68  Mo.  192;  State  v.  Clifton,  73  Mo.  430;  State  v. 
Rand,  33  N.  H.  216;  People  v.  Robinson,  2  Parker  Cr.  Rep.  (N.  Y.)  235; 
People  v.  Griffin,  2  Barb.  (N.  Y.)  427;  State  v.  Martin,  2  Ired.  (N.  C.) 
101 ;  State  v.  Seaborn,  15  N.  C.  305;  Com.  v.  Chauncey,  2  Ashm.   (Pa.) 
90;    State   v.    Motley,    7      S.    C.    327;    State   v.    Washington,   28   Tenn. 
626;    Ellis  v.   State,  92   Id.   85;   Robinson  v.   Com.  88  Va.   900;   Terri- 
tory v.  Armijo,  37  Pac.  1117;  Territory  v.  Barrett,  42  Pac.  66;  Barber  v. 
State,  46  S.  W.  233.    The  same  ruling  was  made  in  Dyer  v.  State,  79 
Tenn.  509,  even  though  a  plea  in  abatement  had  been  filed  before  general 
issue  pleaded  and  was  not  acted  upon. 

225  Com.  v.  Freeman,  166  Pa.  332.    And  see  Com.  v.  Shew,  8  Pa.  Dist. 
Rep.  484. 

226  U.  S.  v.  Hammond,  26  Fed.  Cas.  99;  Com.  v.  Smith,  73  Ky.  476; 
State  v.  Rowland,  36  La.  Ann.  193;  Barney  r.  State,  12  Smedes  &  M. 
(Miss.)  68;  State  v.  Duncan,  7  Yerg.  (Tenn.)  271. 

227  Johnson  v.  State,  62  Ga.  179;  State  v.  Carver,  49  Me.  588;  Clare  v. 
State,  30  Md.  163 ;  Territory  v .  Romero,  2  N.  Mex.  474 ;  State  v.  Lamon,  10 
N.  C.  175 ;  State  v.  Martin,  24  Id.  101 ;  State  v.  Haywood,  94  N.  C.  847 ; 
State  v.  Vogel,  22  Wis.  471.    But  see  State  v.  Parks,  21  La.  Ann.  251 ; 
State  v.  Rowland,  36  Id.  193. 


88  THE    GRAND    JURY. 

While  the  right  is  thus  reserved  in  general  to  a  defendant  to 
take  advantage  of  irregularities  in  the  organization  of  the 
grand  jury,  such  irregularity  cannot  be  availed  of  by  a  person 
who  attacks  the  grand  jury  in  a  collateral  proceeding.228  It 
has  therefore  been  held  that  in  a  proceeding  to  punish  a  wit- 
ness for  defying  the  authority  of  the  grand  jury,  he  cannot  in 
such  collateral  proceeding  question  its  regularity;229  and  sim- 
ilarly, a  person  cannot  refuse  to  testify  before  a  grand  jury 
upon  the  ground  that  it  was  not  empaneled  in  accordance  with 
the  law.230 

When  the  grand  jurors  have  appeared  in  court  in  answer  to 
the  summons,  they  are  then  empaneled.231  This  has  been  ju- 
dicially determined  to  mean  the  final  act  of  the  court  ascertain- 
ing who  should  be  sworn  immediately  preceding  the  adminis- 
tration of  the  oath  to  the  grand  jurors.232  In  the  absence  of 
any  statutory  provision  prescribing  the  time  when  the  grand 
jury  shall  be  organized,  it  would  seem  that  it  may  be  empan- 
eled at  any  time  during  the  term  for  which  it  was  sum- 
moned.233 If,  however,  the  grand  jury  is  not  formed  in  ac- 
cordance with  such  statute  then  the  indictments  are  void.234 


228  State  v.  Noyes,  87  Wis.  340. 

229  In  re  Gannon,  69  Calif.  541.     But  see  In  re  Lester,  77  Ga.  143. 

230  Ex   Parte  Hammond,  91   Calif.  545. 

231  In  U.  S.  v.  Wilson,  28  Fed.  Cas.  725,  it  was  held  that  although  the  Act 
of  Congress,  July  20,  1840  (5  Stat.  394)  provided  for  the  adoption  in  the 
Federal   courts  of  the  methods  of  the  highest  courts  of  the  respective 
states  "in  so  far  as  such  mode  may  be  practicable,"  the  Federal  court  sit- 
ting in  Ohio  had  authority  in  its  discretion  to  adopt  the  mode  of  empan- 
eling grand  juries  practiced  in  the  inferior  courts  of  the  State. 

232  State  v.  Ostrander,  18  Iowa  435. 

233  Perkins  v.  State,  92  Ala.  66;  Jackson  v.  State,  102  Ala.  167;  Meiers 
v.  State,  56  Ind.  336.  Where  the  statute  provided  that  the  grand  jury  should 
be  empaneled  on  the  first  day  of  the  term,  this  provision  was  held  to  be  mere- 
ly directory  and  that  if  empaneled  on  a  subsequent  day  it  was  legally  consti- 
tuted :  State  v.  Davis,  14  La.  Ann.  678 ;  State  v.  Dillard,  35  Id.  1049. 

234  Yelm  Jim  v.  Territory,  i  Wash.  T.  63 ;  Stokes  v.  State,  24  Miss.  621. 
The  court  has  refused  to  quash  where  the  formality  of  drawing  the  names  as 
provided  by  statute  was  disregarded:     Workman  v.  State,  36  T'enn.  425. 
Where  a  statute  provided  a  method  for  the  convening  of  grand  jurors  it 
was  held  that  the  empaneling  of  a  grand  jury  summoned  prior  to  its  pas- 
sage was  legal :     Bell  v.  State,  42  Ind.  335.    And  see  State  v.  Wiltsey,  103 
Iowa  54- 


ORGANIZATION  AND  QUALIFICATIONS.  89 

Where  persons  summoned  as  "trial  jurors"  were  empaneled  as 
a  grand  jury  the  indictment  was  set  aside.235 

The  record  must  show  the  empaneling  of  the  grand  jury 
otherwise  the  indictment  may  be  set  aside,236  but  this  need  not 
be  repeated  in  the  record  of  each  indictment  found.237  If  the 
indictment  recites  the  empaneling  and  the  record  shows  its 
return  into  court,  this  will  be  sufficient,238  but  if  the  only  evi- 
dence of  the  empaneling  be  the  endorsement  on  the  indictment 
"a  true  bill"  and  the  foreman's  signature,  the  indictment  will 
be  quashed.239 

In  the  absence  of  statutory  authority,  the  same  judge  can- 
not organize  two  successive  grand  juries  with  general  powers 
at  the  same  term.240  If  the  first  grand  jury  be  illegally  empan- 
eled, the  court  may,  during  the  term,  discharge  it  and  empanel 
another  according  to  law.241  But  the  second  grand  jury  can- 
not be  legally  empaneled  while  the  first  grand  jury  continues 
to  be  recognized  as  a  legal  body  and  before  it  is  set  aside.242 

Should  a  court  without  authority  of  law  empanel  a  grand 
jury,  it  has  been  held  that  all  indictments  found  by  the  body  so 
constituted  are  void.248 

Where  a  statute  is  enacted  changing  the  manner  of  draw- 
ing and  summoning  grand  jurors  and  repealing  former  stat- 
utes, a  grand  jury  drawn  while  the  prior  statutes  are  in  force 
may  lawfully  be  empaneled  and  act  after  the  repealing  statute 
becomes  effective.244  And  where  a  territory  is  admitted  as  a 

235  People  v.  Earnest,  45  Calif.  29. 

236  Parker  v.  People,  13  Colo.  155;  App   v.  State,  90  Ind.  73.     But  see 
Turns  v.  Com.,  47  Mass.  224. 

237  Parker  v.  People,  13  Colo.  155. 

238  Stout  v.  State,  93  Ind.  150. 

239  Partner  v.  State,  41  Ala.  416. 

240  O'Brien  v.  State,  91  Ala.  16. 

241  Meiers  v.  State,  56  Ind.  336. 

242  State  v.  Jacobs,  6  Tex.  99.    The  discharge  of  the  former  grand  jury 
will  be  presumed:     State  v.  Dusenberry,  112  Mo.  277;  State  v.  Overstreet, 
128  Id.  470. 

243  Ex  Parte  Farley,  40  Fed.  Rep.  66;  O'Brynes  v.  State,  51  Ala.  25; 
State  v.  Doherty,  60  Me.  504;  Stevens  v.  State,  3  Ohio  St.  453.    And  see 
Davis  v.  State,  46  Ala.  80 ;  Finnegan  v.  State,  57  Ga.  427. 

244  Bell  v.  State,  42  Ind.  335;  State  v.  May,  50  Ind.  170;  State  v.  Graff. 


90  THE    GRAND    JURY. 

state,  the  territorial  laws  relating  to  the  authority  of  the  grand 
jury  to  act  and  the  powers  conferred  upon  it  which  were  in 
force  before  its  admission,  remain  in  effect  after  its  admission, 
as  to  offences  committed  prior  thereto.245 

After  any  challenges  to  the  array  or  to  the  polls  have  been 
disposed  of,  the  foreman  is  then  selected  from  the  persons 
summoned.246  In  no  case  should  he  be  illiterate  for  his  duties 
are  important  and  require  knowledge  and  ability,  but  an  in- 
dictment will  not  be  invalidated  because  the  foreman  could  not 
write  his  name.247 

In  England,  the  United  States  Courts  and  in  many  of  the 
state  courts,  the  foreman  is  appointed  by  the  court.248  In 
some  states  he  is  selected  by  the  grand  jury  from  their  num- 
ber;249 in  others  they  are  permitted  to  make  selection  subject 
to  the  approval  of  the  court,250  or  the  court  may  direct  them  to 
choose  their  foreman.251  If  he  should  afterward  be  excluded 
from  the  grand  jury  by  reason  of  disqualification  or  other 
cause,  the  court  may  appoint  his  successor,252  and  if  he  is  but 
temporarily  disqualified  from  serving  by  reason  of  sickness, 
absence  or  the  like,  then  a  foreman  pro  tern,  may  be  named,253 
who  lawfully  exercises  all  the  powers,  and  must  perform  all  the 
duties,  which  devolve  upon  the  regularly  appointed  foreman. 

The  appointment  of  the  foreman  should  be  noted  upon  the 
minutes  of  the  court  and  such  entry  is  sufficient  evidence  of  his 


97  Iowa  568;  State  v.  Wiltsey,  103  Iowa  54;  In  re  Tillery,  43  Kans.  188; 
Broyles  v.  State,  55  S.  W.  966.    CONTRA  Clark  v.  U.  S.,  19  App.  D.  C  295. 

245  State  v.  Rock,  57  Pac.  532. 

246  In  State  v.  Texada,  19  La.  Ann.  436,  it  was  held  that  the  statute  re- 
lating to  the  drawing  of  grand  jurors  makes  it  essential  that  the  foreman 
should  be  selected  from  the  whole  venire. 

247  State  v.  Tinney,  26  La.  Ann.  460. 

248  The  court  may  appoint  a  talesman  selected  from  the  by-standers  as 
foreman  of  the  grand  jury:     State  v.  Brandt,  41  Iowa  593. 

249  i  Whart.  Cr.  Law,  Sec.  466;  Revised  Statutes  Maine,  Ch.  135;  Sec.  4; 
Revised  Laws  Massachusetts,  Ch.  218,  Sec.  7 ;  Revised  Statutes  Florida,  Sec. 
2809. 

250  Blackmore  v.  State,  8  S.  W.  940. 

251  Lung's   Case,    I    Conn.   428. 

252  U.  S.  v.  Belvin,  46  Fed.  Rep.  381. 

253  Com.  v.  Noonan,  38  Leg.  Int.   (Pa.)   184. 


ORGANIZATION  AND  QUALIFICATIONS.  9 1 

appointment  ;254  although  this  has  been  held  not  to  be  material 
where  the  indictment  was  indorsed  by  the  foreman  and  re- 
turned into  court.255 

If  the  record  shows  that  one  person  has  been  appointed  fore- 
man and  an  indictment  is  returned  signed  by  another  as  fore- 
man, in  the  absence  of  proof  to  the  contrary  the  court  will 
presume  that  the  foreman  named  in  the  record  has  been  regu- 
larly discharged  and  the  other  appointed  in  his  stead.256 

An  indictment  endorsed  "a  true  bill"  and  returned  upon  the 
authority  of  the  whole  grand  jury  was  sustained  although  no 
foreman  had  been  appointed.257 

The  clerk  of  the  grand  jury  is  usually  one  of  that  body, 
who  is  selected  by  his  fellow  jurors  after  they  have  been  sworn 
and  have  retired  to  their  room.  In  his  absence  or  inability  to 
act,  another  juror  may  be  named  to  act  in  his  stead. 

When  the  foreman  of  the  grand  jury  has  been  appointed, 
but  one  step  more  is  required  to  complete  its  organization  and 
fit  it  to  enter  upon  the  performance  of  its  duties,  and  that  is  the 
administration  of  the  oath.258  The  foreman  is  first  sworn  alone 
and  afterward  the  grand  jurors,  three  at  a  time  come  forward 
and  take  the  oath,  and  such  of  them  as  will  not  take  an  oath  are 
allowed  to  affirm,259  until  all  have  either  been  sworn  or  af- 


254  Byrd  v.  State,  i  How.   (Miss.)  247;  Woodsidcs  v.  State,  2  How. 
(Miss.)  655- 

255  People  v.  Roberts,  6  Calif.  214.    And  for  a  similar  ruling  see  State 
v.  Gouge,  80  Tenn.  132,  in  the  absence  of  plea  in  abatement  and  proof  to 
sustain  the  allegations  thereof. 

256  Mohler  v.  People,  24  111.  26;  State  v.  Collins,  65  Tenn.  151. 

257  Friar  v.  State,  3  How.  (Miss.)  422;  Peter  v.  State,  Id.  433;  And  see 
Yates  v.  People,  38  111.  527. 

258  The  grand  jury  is  not  complete  and  organized  for  business  until 
sworn:    Ridling  v.   State,  56  Ga.  601.    The  oath  may  be  administered 
under  the  direction  of  the  court  by  any  officer  authorized  generally  to  ad- 
minister oaths:    Allen  v.  State,  77  111.  484. 

259  Where  an  indictment  is  based  on  the  affirmations  of  some  cf  the 
grand  jurors  it  will  be  quashed  unless  it  appears  they  were  legally  en- 
titled to  serve  on  their  mere  affirmation:     State  r.  Harris,  7  N.  J.  Law 
361 ;  and  where  found  on  the  affirmation  of  Quakers  it  must  appear  that 
they  had  conscientious  scruples  against  taking  an  oath:     State  v.  Fox,  9 
N.  J.  Law  244. 


92  THE    GRAND    JURY. 

firmed.260  This  was  the  common  law  method  of  administering 
the  oath  and  in  some  jurisdictions  has  now  given  place  to  the 
custom  of  swearing  the  grand  jurors  as  a  body  after  the  ad- 
ministration of  the  oath  to  the  foreman;  in  others,  it  is  pro- 
vided by  statute  that  the  full  oath  shall  be  administered  to  the 
first  two  grand  jurors  whose  names  appear  upon  the  list,  and 
then  the  balance  of  the  panel  shall  be  sworn  with  the  short 
form  of  oath.260* 

The  method  of  administering  the  oath  has  been  discussed 
by  Chief  Justice  Johnson  in  the  case  of  Brown  vs.  State2*1  in 
the  following  language : 

"The  form  of  oath  required  to  be  administered  to  the  grand 
jurors  is  of  ancient  origin,  and  it  is  necessary  that  it  should  be 
observed,  at  least  in  substance;  but  the  mode  or  order  of  ad- 
ministering it  is  purely  a  matter  of  practice,  and  must  of  ne- 
cessity be  governed  by  circumstances It  is  con- 
ceived to  be  entirely  a  matter  of  practice  as  to  the  number  that 
shall  be  sworn  at  a  time,  and  that  such  practice  is  regulated 
alone  by  considerations  of  convenience." 

The  panel  need  not  be  complete  when  the  oath  is  adminis- 
tered, but  the  full  oath  must  be  administered  to  those  who  are 
added  after  part  have  been  sworn.262 

If  a  form  of  oath  be  prescribed  by  statute,  it  should  be  sub- 
stantially complied  with.263 

The  minutes  of  the  court  must  show  that  the  grand  jury  was 
sworn  ;264  it  is  not  sufficient  that  the  indictment  sets  forth  that 

260  i  Whart.  Cr.  Law,  Sec.  466. 

260*  Revised  Statutes  Maine,  Ch.  135,  Sec.  2;  Revised  Laws  Massachu- 
setts, Ch.  218,  Sec.  5;  Wisconsin  Statutes,  Ch.  116,  Sec  2547. 

261  10  Ark.  613. 

262  Brown  v.  State,  10  Ark.  607.    And  see  State  v.  Furco,  51  La.  Ann. 
1082. 

263  Ashburn  v.  State,  15  Ga.  246.    CONTRA  West  v.  State,  6  Tex.  App. 

485- 

264  The  minutes  of  the  court  are  not  the  exclusive  mode  of  proving 
that  the  grand  jury  had  been  duly  empanelled  and  sworn:     State  v.  Stuart, 
35  La.  Ann.  1015. 


ORGANIZATION  AND  QUALIFICATIONS.  93 

the  grand  jurors  were  duly  sworn.295     If  regularly  sworn 
but  this  fact  be  inadvertently  omitted  from  the  record,  the 
defect  may  be  cured  and  the  record  amended  nunc  pro  tune.299 
The  record  must  show  that  the  foreman  was  sworn.267 

265  Abram  v.  State,  25  Miss.  589;  Foster  v.  State,  31  Id.  421 ;  Russell  v. 
State,  10  Tex.  288 ;  Pierce  v.  State,  12  Id.  210.    In  People  v.  Rose,  52  Hun. 
(N.  Y.)  33,  it  appeared  that  the  oath  was  informally  administered,  but  it 
was  held  that  the  facts  thus  shown  did  not  impeach  the  recital  of  the  in- 
dictment that  the  oath  was  duly  administered. 

266  Baker  v.  State,  39  Ark.  180 ;  State  v.  Folke,  2  La.  Ann.  744. 

267  Roe  v.  State,  2  So.  459. 


PART  III 

THE  OATH  POWERS  AND  DUTIES  OF  GRAND  JURORS. 

"The  oath  of  a  grand  juryman,"  says  Judge  Wilson,1  "is 
the  commission  under  which  he  acts."  This  statement,  while 
undoubtedly  a  correct  exposition  of  the  law  as  then  understood, 
is  in  our  modern  jurisprudence  not  sufficiently  comprehensive, 
and  is  subject  to  the  qualification  that,  coupled  with  additional 
statutory  powers,  and  duties  within  the  bounds  prescribed  by 
statutes  or  as  defined  by  the  courts,  it  forms  his  commission. 

The  oath  as  administered  to  the  foreman  of  the  grand  jury1* 
is  generally  in  the  following  language :  "You,  as  foreman  of 
this  inquest,  for  the  body  of  the  County  of  ,  do  swear, 

I  Jas.  Wilson's  Works,  Vol.  II,  p.  365. 

i*  No  statutory  form  of  oath  has  been  adopted  by  the  United  States, 
nor  is  any  form  of  oath  prescribed  by  statute  in  the  states  of  New  Jersey, 
Pennsylvania,  Maryland,  Delaware,  North  Carolina,  South  Carolina, 
Louisiana,  and  the  Territory  of  Hawaii. 

The  oath  adopted  by  statute  in  all  other  states  and  territories  is  given 
as  follows: 

MAINE.     Revised  Statutes,  Chapter  135,  Sec.  2:     "You,  as  grand  jurors 

of  this  county  of ,  solemnly  swear,  that  you  will  diligently  inquire  and 

true  presentment  make  of  all  matters  and  things  given  you  in  charge.  The 
state's  counsel,  your  fellows  and  your  own,  you  shall  keep  secret.  You 
shall  present  no  man  for  envy,  hatred  or  malice;  nor  leave  any  man  un- 
presented  for  love,  fear,  favor,  affection  or  hope  of  reward;  but  you  shall 
present  things  truly  as  they  come  to  your  knowledge,  according  to  the  best 
of  your  understanding.  So  help  you  God." 

NEW  HAMPSHIRE.  Public  Statutes,  Chapter  253,  Sec.  5,  with  slight 
changes,  prescribes  the  same  oath  as  used  in  Maine. 

VERMONT.  Statutes,  Chapter  233,  Sec.  5418,  prescribes  with  slight 
changes  the  same  oath  as  used  in  Maine,  but  concludes  with  the  added 
words,  "According  to  the  laws  of  this  state.'' 

MASSACHUSETTS.  Revised  Laws,  Chapter  218,  Sec.  5,  prescribes  with 
slight  changes  the  same  oath  as  used  in  Maine. 

RHODE  ISLAND.     General  Laws,  Chapter  227,  Sec.  34,  provides  "diligently 

94 


OATH   POWERS  AND  DUTIES.  95 

(or  affirm)  that  you  will  diligently  inquire,  and  true  present- 
ment make,  of  such  articles,  matters,  and  things  as  shall  be 
given  you  in  charge  or  otherwise  come  to  your  knowledge, 
touching  the  present  service;  the  commonwealth's  counsel, 

inquire  and  true  presentment  make  of  all  such  crimes  and  misdemeanors 
cognizable  by  this  court  as  shall  come  to  your  knowledge,"  but  other- 
wise is  the  same  as  the  oath  used  in  Maine. 

CONNECTICUT.  General  Statutes,  Title  54,  Chapter  281,  Sec.  4795:  "You 
solemnly  swear  by  the  name  of  the  ever  living  God,  that  you  will  diligently 
inquire  after,  and  due  presentment  make,  of  all  breaches  of  law  that  shall 
come  to  your  knowledge,  according  to  your  charge ;  the  secrets  of  the  cause, 
your  own,  and  your  fellows',  you  will  duly  observe  and  keep ;  you  will  pre- 
sent no  man  from  envy,  hatred,  or  malice;  neither  will  you  leave  any  man 
unpresented,  from  love,  fear,  or  affection,  or  in  hope  of  reward;  but  you 
will  present  cases  truly,  as  they  come  to  your  knowledge,  according  to  the 
best  of  your  understanding,  and  according  to  law ;  so  help  you  God." 

NEW  YORK.  Code  Criminal  Procedure,  Sec.  245,  with  slight  changes, 
prescribes  the  same  oath  as  used  in  Maine. 

VIRGINIA.  Code,  Tit.  53,  Chapter  195,  Sec.  3980:  "You  shall  diligently 
inquire,  and  true  presentment  make,  of  all  such  matters  as  may  be  given 
you  in  charge,  or  come  to  your  knowledge,  touching  the  present  service. 
You  shall  present  no  person  through  prejudice  or  ill  will,  nor  leave  any 
unpresented  through  fear  or  favor,  but  in  all  your  presentments  you  shall 
present  the  truth,  the  whole  truth,  and  nothing  but  the  truth,  so  help  you 
God." 

GEORGIA.  Penal  Code,  1895,  Sec.  825,  prescribes  substantially  the  form 
of  oath  contained  in  the  text  with  this  change,  viz :  "The  state's  counsel, 
your  fellows',  and  your  own,  you  shall  keep  secret,  unless  called  upon  to 
give  evidence  thereof  in  some  court  of  law  in  this  state." 

FLORIDA.  Revised  Statutes,  1892,  Sec.  2808,  prescribe  substantially  the 
same  form  of  oath  as  used  in  Georgia. 

TEXAS.  Code  Cr.  Proc.  1897,  Art.  404,  substantially  the  same  as  the 
Maine  oath  except  in  this,  viz :  "The  state's  counsel,  your  fellows',  and 
your  own  you  shall  keep  secret,  unless  required  to  disclose  the  same  in  the 
course  of  a  judicial  proceeding  in  which  the  truth  or  falsity  of  evidence 
given  in  the  grand  jury  room,  in  a  criminal  case,  shall  be  under  investiga- 
tion.*' 

ALABAMA.  Code  1896,  Sec.  5024,  prescribes  a  form  of  oath  similar  to 
the  oath  in  the  text,  but  makes  particular  reference  to  offences  "committed 
or  triable  within  the  county." 

TENNESSEE.  Code,  Sec.  5833,  prescribes  substantially  the  same  oath  as 
used  in  Alabama. 

KENTUCKY.  Statutes,  Chapter  74,  Sec.  2250:  "Saving  yourselves,  you 
do  swear  that  you  will  diligently  inquire  of,  and  present  all  treasons,  felon- 


96  THE   GRAND   JURY. 

your  fellows'  and  your  own  you  shall  keep  secret;  you  shall 
present  no  one  for  envy,  hatred  or  malice;  neither  shall  you 
leave  any  one  unpresented  for  fear,  favor  or  affection,  hope  of 
reward  or  gain,  but  shall  present  all  things  truly  as  they  come 

ies,  misdemeanors,  and  breaches  of  the  penal  laws  which  shall  have  been 
committed  or  done  within  the  limits  of  the  jurisdiction  of  this  county,  of 
which  you  have  knowledge  or  may  receive  information." 

MISSISSIPPI.  Code,  Sec.  2372,  prescribes  substantially  the  form  given 
in  the  text. 

WEST  VIRGINIA.  Code,  Chapter,  157,  Sec.  5,  prescribes  substantially 
the  same  form  of  oath  as  used  in  Virginia. 

OHIO.  Revised  Statutes,  Sec.  7191,  prescribes  the  form  given  in  the 
text,  but  beginning,  "Saving  yourself  and  fellow  jurors;"  preserving 
secrecy  "unless  called  on  in  a  court  of  justice  to  make  disclosures;"  and 
concluding,  "you  shall  present  the  truth,  the  whole  truth  and  nothing  but 
the  truth,  according  to  the  best  of  your  skill  and  understanding." 

INDIANA.  Code  Crim.  Proc.,  Sec.  1721 :  "You  and  each  of  you,  do 
solemnly  swear  that  you  will  diligently  inquire,  and  true  presentment  make, 
of  all  felonies  and  misdemeanors,  committed  or  triable,  within  this  county, 
of  which  you  shall  have  or  can  obtain  legal  evidence ;  that  you  will  present 
no  person  through  malice,  hatred  or  ill-will,  nor  leave  any  unpresented 
through  fear,  favor  or  affection,  or  for  any  reward,  or  the  promise  or  hope 
thereof,  but  in  all  your  indictments  you  will  present  the  truth,  the  whole 
truth,  and  nothing  but  the  truth ;  and  that  you  will  not  disclose  any  evi- 
dence given  or  proceeding  had  before  the  grand  jury,  so  help  you  God." 

ILLINOIS.  Statutes,  Chapter  78,  Sec.  18,  prescribes  substantially  the  form 
set  forth  in  the  text. 

MICHIGAN.  Howell's  Ann.  Stat.,  Sec.  9491,  prescribes  substantially  the 
same  form  as  used  in  Maine. 

WISCONSIN.  Statutes,  Chapter  116,  Sec.  2547,  prescribes  substantially 
the  same  oath  as  used  in  Maine. 

MISSOURI.  Revised  statutes  1899,  Sec.  2489,  prescribes  a  form  substan- 
tially the  same  as  used  in  Indiana. 

NEBRASKA.  Compiled  statutes,  Sec.  8139,  prescribes  the  same  oath  as 
used  in  Ohio. 

KANSAS.  General  Statutes  1897,  Chapter  102;  Sec.  97,  prescribes  sub- 
stantially the  same  oath  as  used  in  Indiana. 

MINNESOTA.  General  Statutes,  Sec.  5641,  prescribes  substantially  the 
same  oath  as  used  in  Indiana. 

ARKANSAS.  Statutes,  Chapter  49,  Sec.  2041,  prescribes  substantially  the 
same  oath  as  used  in  Kentucky. 

IDAHO.  Penal  Code,  Sec.  5293:  "You,  as  foreman  of  the  grand  jury, 
will  diligently  inquire  and  true  presentment  make,  of  all  public  offences 
against  the  State  of  Idaho,  committed  or  triable,  within  this  county,  of 


OATH   POWERS  AND  DUTIES.  97 

to  your  knowledge,  according  to  the  best  of  your  understand- 
ing (so  help  you  God.)" 

This  oath  the  balance  of  the  grand  jurors  pledge  themselves 
to  observe  in  these  words:  "The  same  oath  (or  affirmation) 
which  your  foreman  hath  taken,  on  his  part,  you  and  every  of 

which  you  shall  have  or  can  obtain  legal  evidence.  You  will  keep  your 
own  counsel,  and  that  of  your  fellows,  and  of  the  government,  and  will  not, 
except  when  required  in  the  course  of  judicial  proceedings,  disclose  the  tes- 
timony of  any  witness  examined  before  you,  nor  anything  which  you  or  any 
other  grand  juror  may  have  said,  nor  the  manner  in  which  you  or  any 
other  grand  juror  may  have  voted  on  any  matter  before  you.  You  will 
present  no  person  through  malice,  hatred,  or  ill  will,  nor  leave  any  unpre- 
sented  through  fear,  favor  or  affection,  or  for  any  reward  or  the  promise 
or  hope  thereof;  but  in  all  your  presentments  you  will  present  the  truth, 
the  whole  truth,  and  nothing  but  the  truth,  according  to  the  best  of  your 
skill  and  understanding,  so  help  you  God.'' 

NEVADA.  Compiled  Statutes,  Sec.  4158,  prescribes  a  form  of  oath  sub- 
stantially the  same  as  the  oath  used  in  Indiana. 

COLORADO.  Ann.  Statutes,  1891,  Chapter  73,  Sec.  2617,  prescribes  substan- 
tially the  same  oath  as  given  in  the  text. 

UTAH.  Revised  Statutes  1898,  Sec.  4708,  prescribes  substantially  the 
same  oath  as  used  in  Idaho. 

CALIFORNIA.  Penal  Code,  Sec.  903,  prescribes  substantially  the  same  oath 
as  used  in  Idaho. 

OREGON.  Code,  Section  1271,  prescribes  the  following  form  of  oath: 

"You  and  each  of  you,  as  grand  jurors  for  the  county  of ,  do  solemnly 

swear  that  you  will  diligently  inquire  into,  and  true  presentment  or  indict- 
ment make,  of  all  crimes  against  this  state,  committed  or  triable  within 
this  county,  that  shall  come  to  your  knowledge ;  that  the  proceedings  before 
you,  the  counsel  of  the  state,  your  own  counsel,  and  that  of  your  fellows, 
you  will  keep  secret ;  that  you  will  indict  no  person  through  envy,  hatred,  or 
malice,  nor  leave  any  person  not  indicted  through  fear,  favor,  affection,  or 
hope  of  reward,  but  that  you  will  indict,  according  to  the  truth,  upon  the 
evidence  before  you,  and  the  laws  of  this  state ;  so  help  you  God." 

WASHINGTON.  Code,  Section  6809  prescribes  substantially  the  same  oath 
as  used  in  Vermont. 

WYOMING.  Revised  Statutes,  Sect  5282:  "You,  as  foreman  of  this 
grand  inquest,  do  solemnly  swear  (or  affirm)  that  you  will  diligently  in- 
quire and  true  presentment  make  of  all  such  matters  and  things  as  shall 
be  given  you  in  charge,  or  otherwise  come  to  your  knowledge  touching  the 
present  service.  The  counsel  of  the  state,  your  own  and  your  fellows,  you 
shall  keep  secret  unless  called  on  in  a  court  of  justice  to  make  disclosures. 
You  shall  present  no  person  through  malice,  hatred  or  ill  will,  nor  shall 
you  leave  any  person  unpresented  through  fear,  favor  or  affection,  or  for 


98  THE   GRAND   JURY. 

you,  shall  well  and  truly  observe,  on  your  part  (so  help  you 
God)." 

The  grand  juror's  oath  is  of  great  antiquity.  When  in  the 
time  of  Ethelred  II.  the  twelve  Thanes  went  out,  they  "swore 
upon  the  relic  that  was  given  them  in  hand  that  they  would 
accuse  no  innocent  man  nor  conceal  any  guilty  one."2  In 
Bracton's  time  the  oath  and  pledge  bound  the  grand  jurors  to 

any  reward  or  hope  thereof;  but  in  all  your  presentments  you  shall  present 
the  truth,  the  whole  truth  and  nothing  but  the  truth,  according  to  the  best 
of  your  skill  and  understanding." 

MONTANA.  Penal  Code,  Sec.  1761 :  "You,  and  each  of  you,  do  solemn- 
ly swear  (or  affirm)  that  you  will  diligently  inquire  into  and  true  present- 
ment make,  of  all  public  offences  against  the  laws  of  this  state,  committed  or 
triable  by  indictment  in  this  county,  of  which  you  have  or  can  obtain  legal 
evidence,  you  will  present  no  one  through  hatred,  malice  or  ill  will,  nor 
leave  any  unpresented  through  fear,  favor  or  affection,  or  for  any  reward, 
or  the  promise  or  hope  thereof;  but  in  all  your  presentments  you  will  pre- 
sent the  truth,  the  whole  truth  and  nothing  but  the  truth,  according  to 
the  best  of  your  skill  and  understanding,  so  help  you  God." 

NORTH  DAKOTA.  Revised  Code  1895,  Sec.  8004,  prescribes  substantially 
the  same  oath  as  used  in  Idaho. 

SOUTH  DAKOTA.  Revised  Code  Criminal  Proc.,  Sec.  177,  prescribes  the 
same  oath  as  used  in  North  Dakota. 

IOWA.  Code  1897,  Sect.  5249:  "You,  as  foreman  of  the  grand  jury, 
shall  diligently  inquire  and  true  presentment  make  of  all  public  offences 
against  the  people  of  this  state,  triable  on  indictment  within  this  county, 
of  which  you  have  or  can  obtain  legal  evidence ;  you  shall  present  no  person 
through  malice,  hatred  or  ill  will,  nor  leave  any  unpresented  through  fear, 
favor  or  affection,  or  for  any  reward  or  the  promise  or  hope  thereof,  but 
in  all  your  presentments  you  shall  present  the  truth,  the  whole  truth  and 
nothing  but  the  truth,  according  to  the  best  of  your  skill  and  understand- 
ing." 

ARIZONA.  Code  Crim.  Proc.  Sec.  800,  prescribes  substantially  the  same 
oath  as  used  in  Idaho. 

NEW  MEXICO.  Compiled  Laws  1897,  Sec.  967,  prescribes  substantially 
the  same  oath  as  used  in  Iowa. 

INDIAN  TERRITORY.  Statutes  Cr.  Proc.,  Chapter  20,  Sec.  1418:  "Saving 
yourselves  and  fellow  jurors,  you  do  swear  that  you  will  diligently  inquire 
of  and  present  all  treasons,  felonies,  misdemeanors  and  breaches  of  the 
penal  laws  over  which  you  have  jurisdicton,  of  which  you  have  knowledge 
or  may  receive  information." 

OKLAHOMA.  Revised  Statutes  1903,  Sec.  5329,  prescribes  substantially 
the  same  oath  as  used  in  Idaho. 

2  Wilkin's  Leges  Angliae  Saxonicse  117. 


OATH   POWERS  AND  DUTIES.  99 

similar  action.3  But  while  the  powers  of  the  grand  jury  were 
much  broader  than  they  are  today,  the  oath  of  the  grand  juror 
was  narrower  in  its  scope.  "I  will  speak  the  truth  concerning 
this  which  ye  shall  ask  me,"4  the  grand  juror  swore,  and  if  the 
oath  was  his  commission,  then  the  limits  of  his  powers  were 
defined  by  those  things  concerning  which  the  king's  justice 
should  ask.  The  oath  proper,  as  usually  referred  to,  in  no 
wise  resembles  the  present  day  oath,  but  at  the  conclusion  of 
the  reading  of  the  capitula  by  the  justices  as  to  which  the 
grand  jurors  had  sworn  to  speak  the  truth,  they  pledged  them- 
selves to  do  faithfully  those  things  which  the  justices  required 
of  them,  to  aggrieve  no  one  through  enmity,  nor  defer  to  any 
one  through  love,  and  to  conceal  what  they  had  heard.5  This 
was  undoubtedly,  in  the  nature  of  a  supplemental  oath  and  con- 
tains the  elements  of  the  oath  of  the  present  day. 

In  the  time  of  Britton6  but  one  oath  was  taken,  containing 
all  the  elements  of  the  two  oaths  taken  in  Bracton's  time,  and 
more  generally  conforming  to  the  oath  now  administered.  In 
a  book  printed  in  the  time  of  Oliver  Cromwell,7  the  oath  taken 
by  the  foreman  of  the  grand  jury  is  given  as  follows:  "Ye 
shall  truly  inquire,  and  due  presentment  make  of  all  such 
things  as  you  are  charged  withall  on  the  Queen's  behalf,  the 
Queen's  councell,  your  owne,  and  your  fellowes,  you  shall 
well  and  truly  keepe ;  and  in  all  other  things  the  truth  present, 
so  help  you  God,  and  by  the  contents  of  this  Booke." 

It  will  be  noted  that  this  oath,  like  the  one  taken  by  the 
grand  jurors  in  Bracton's  time,  places  a  limitation  upon  the 
power  of  the  grand  jury.  They  are  charged  to  present  "all 
such  things  as  you  are  charged  withall  on  the  Queen's  behalf," 
so  that  if  their  oath  be  regarded  as  their  commission  and  de- 
fining the  bounds  within  which  they  could  lawfully  act,  they 
were  prevented  from  making  presentment  of  anything  with 
which  they  had  not  been  charged.  But  in  practice  no  such  re- 

3  Bracton-de  legibus,  (Sir  Travers  Twiss  ed.)  Vol.  II,  pp.  237-243. 

4  Id. 

5  Supra.  20,  21. 

7  Book  of  Oaths  (London,  1649)  206. 

6  Britton  (Legal  Classic  Series)  p.  17. 


IOO  THE    GRAND    JURY. 

striction  was  placed  upon  them.  They  were  regarded  as  an 
arm  of  the  government  to  bring  wrong-doers  to  justice,  and 
in  this  respect  they  exercised  the  broadest  and  most  unlimited 
powers. 

The  view  was  taken  in  the  early  history  of  the  Federal  courts 
that  grand  juries,  on  their  own  motion,  institute  all  proceedings 
whatsoever.8  This  view  received  strong  support  from  Judge 
Wilson,9  at  that  time  one  of  the  justices  of  the  United  States 
Supreme  Court,  who  remarks  that  the  grand  jurors'  oath  "as- 
signs no  limits,  except  those  marked  by  diligence  itself,  to  the 
course  of  his  inquiries :  why,  then,  should  it  be  circumscribed 
by  more  contracted  boundaries?  Shall  diligent  inquiry  be 
enjoined?  And  shall  the  means  and  opportunities  of  inquiry 
be  prohibited  or  restrained  ?" 

The  same  broad  view  of  the  right  of  the  grand  jury  to  act 
was  taken  by  Mr.  Bradford,  Attorney  General  of  the  United 
States  in  1794,  in  a  letter  to  the  secretary  of  state.10  In  this 
he  recognized  the  right  of  a  prosecutor  to  personally  appear 
before  the  grand  jury  with  his  witnesses  and  make  his  com- 
plaint directly  to  them  without  the  necessity  of  it  passing 
through  any  intermediate  tribunal.11  This,  however,  is  not 
now  the  law  in  the  Federal  courts.12 

8  i  Whart.  Cr.  Law,  Sec.  453  (7th  ed.). 

9  Jas.  Wilson's  Works,  Vol.  II,  p.  365. 

10  Opinions  of  Attorneys  General  22.    And  see  i  Whart.  Cr.  Law,  Sec. 
453  (7th  ed.). 

11  In  State  v.  Stewart,  45  La.  Ann.  1164,  decided  in  1893,  the  grand  jury 
were  considering  a  bill  against  the  defendant  when  a  person,  without  be- 
ing summoned  appeared  before  the  grand  jury  and  gave  his  version  of  the 
case.     A  true  bill  was  returned  and  the  defendant  sought  to  quash  the  in- 
dictment upon  the  ground  that  the  indictment  had  been  found  at  the  in- 
stance of  this  witness.    The  court  overruled  the  motion.     In  his  opinion  on 
appeal  by  the  state  on  other  grounds  it  was  said  by  McEnery,  J. :     "It  is 
complained  by  the  defendant  that  one  S.  A.  Morgan,  the  leading  state  wit- 
ness, went  without  summons  or  request  before  the  grand  jury  and  gave  his 
own  version  of  the  case  against  defendant,  and  instituted  this  prosecution. 
The  witness  had  the  undoubted  right  to  go  before  the  grand  jury  volun- 
tarily and  disclose  his  knowledge  of  facts  in  the  case.    As  a  good  citizen  it 
was  his  duty  to  do  so.     No  one  can  be  excused  for  withholding  knowledge 
of  a  crime  from  the  public  until  he  is  summoned  to  give  his  testimony  of 


OATH  POWERS  AND  DUTIES.  IOI 

In  Pennsylvania,  a  somewhat  narrower  view  of  the  power 
of  the  grand  jury  was  taken.  Judge  Addison  in  his  very 
learned  charges  to  grand  juries  says:  "The  matters  which, 
whether  given  in  charge  or  of  their  own  knowledge,  are  to  be 
presented  by  the  grand  jury,  are  all  offences  within  the  county. 
To  grand  juries  is  committed  the  preservation  of  the  peace  of 
the  county,  the  care  of  bringing  to  light  for  examination,  trial 
and  punishment,  all  violence,  outrage,  indecency  and  terror, 
everything  that  may  occasion  danger,  disturbance  or  dismay  to 
the  citizens.  Grand  juries  are  watchmen,  stationed  by  the  laws 
to  survey  the  conduct  of  their  fellow-citizens,  and  inquire 
where  and  by  whom  public  authority  has  been  violated,  or  our 
constitution  or  laws  infringed."  But  the  grand  jury  is  not  to 
summon  witnesses  except  under  the  supervision  of  the  court.13 
This  effectually  limits  them  to  such  matters  as  are  within  their 
own  knowledge  or  may  be  given  them  in  charge  by  the  court 
or  by  the  district  attorney. 

The  first  duty  imposed  upon  the  grand  jurors  by  their  oath  is 
that  they  will  "diligently  inquire  and  true  presentment  make." 
Judge  Addison,  in  his  charge  to  the  grand  jury  at  September 
Sessions,  1792,  said,  "the  accurate  interpretation,  in  its  true 
extent,  of  the  diligent  inquiry  and  true  presentment  which  the 
grand  jury  is  sworn  to  make,  has  not  been  precisely  agreed  on 
by  learned  men."14  Four  years  earlier,  however,  these  words 
had  received  a  judicial  interpretation  in  Pennsylvania,15  in  a 
case  pending  before  the  grand  jury.  A  grand  juror  asked 
what  was  meant  by  the  words  "diligently  inquire,"  to  which 
Chief  Justice  McKean  replied,  "The  expression  meant,  dili- 
gently to  inquire  into  the  circumstances  of  the  charge,  the 
credibility  of  the  witnesses  who  support  it,  and  from  the 

its  commission."    As  to  this  decision  it  is  sufficient  to  say  that  it  is  con- 
trary to  the  law  as  laid  down  by  the  courts  of  every  other  state. 

12  Mr.  Justice  Field's  Charge  to  Grand  Jury,  30  Fed.  Cas.  992.    And  see 
Welch  v.  State,  68  Miss.  341 ;  Wilson  v.  State,  70  Miss.  595 ;  McCullough  v. 
Com.  67  Pa.  30. 

13  Addison  App.  47 ;  Mr.  Justice  Field's  Charge  to  Grand  Jury,  30  Fed. 
Cas.  992. 

14  Addison,  App.  38. 

15  Res.  v.  Shaffer,  I  Dall.  236. 


IO2  THE    GRAND    JURY. 

whole,  to  judge  whether  the  person  accused  ought  to  be  put 
upon  his  trial.  For  (he  added)  though  it  would  be  improper 
to  determine  the  merits  of  the  cause,  it  is  incumbent  upon  the 
grand  jury  to  satisfy  their  minds,  by  a  diligent  inquiry,  that 
there  is  a  probable  ground  for  the  accusation,  before  they  give 
it  their  authority,  and  call  upon  the  defendant  to  make  a  pub- 
lic defense." 

In  his  charge  to  the  grand  jury  in  the  Circuit  Court  for  the 
District  of  Maryland  in  1836,  Chief  Justice  Taney,  of  the 
United  States  Supreme  Court,  said,16  "But  in  our  desire  to 
bring  the  guilty  to  punishment,  we  must  still  take  care  to 
guard  the  innocent  from  injury;  and  every  one  is  deemed  to 
be  innocent  until  the  contrary  appears  by  sufficient  legal  proof. 
You  will,  therefore,  in  every  case  that  may  come  before  you, 
carefully  weigh  the  testimony,  and  present  no  one,  unless  in 
your  deliberate  judgment,  the  evidence  before  you  is  sufficient 
in  the  absence  of  any  other  proof,  to  justify  the  conviction  of 
the  party  accused." 

The  difference  in  the  extent  of  the  powers  of  grand  jurors 
in  the  Federal  courts  and  in  the  courts  of  Pennsylvania  and 
other  states  is  reflected  in  the  wider  range  which  the  Federal 
judges  give  to  this  clause  of  the  oath.  The  construction  placed 
upon  these  words  in  the  Federal  courts  is  probably  most  fully 
and  clearly  expressed  by  Chief  Justice  Chase17  in  the  follow- 
ing language:  "You  must  not  be  satisfied  by  acting  upon 
such  cases  only  as  may  be  brought  before  you  by  the  district 
attorney,  or  by  members  of  your  body  to  whom  knowledge  of 
particular  offences  may  have  come.  Your  authority  and  your 
duty  go  much  further.  You  may  and  you  should,  summon 
before  you,  officers  of  the  government,  and  others  whom  you 
may  have  reason  to  believe  possess  information  proper  for  your 
action,  and  examine  them  fully." 

But  in  making  diligent  inquiry  neither  the  Federal  nor  the 
state  grand  jury  is  wholly  unrestrained.  They  may  only  in- 
quire and  present  within  the  extent  of  their  powers  as  will  be 

16  30  Fed.  Cas.  998. 

17  Charge  to  Grand  Jury,  30  Fed.  Cas.  980. 


OATH   POWERS  AND  DUTIES.  IOJ 

hereafter  treated  of,18  and  according  to  the  well  established 
principles  of  law.  A  grand  jury  may  only  inquire  into 
offences  occurring  within  its  territorial  jurisdiction,18  and  not 
barred  by  the  statute  of  limitations  ;20  but  within  such  jurisdic- 
tion they  may  investigate  into  every  crime  known  to  the  law,21 
and  which  comes  before  them  in  one  of  the  methods  provided 
by  law.  They  may  investigate  a  crime  committed  after  they 
are  empaneled.22 

In  making  their  inquiries,  the  grand  jurors  are  not  per- 
mitted to  summon  witnesses  for  the  defence  either  upon  their 
own  motion23  or  at  the  request  of  the  defendant  or  his  coun- 
sel,24 nor  will  the  court  allow  the  defendant's  witnesses  to  go 
before  the  grand  jury,25  either  with  or  without  the  consent  of 
the  district  attorney;26  nor  may  any  witnesses  appear  before 
or  send  any  communication  to  them,  pertaining  to  a  matter 
then  pending  before  the  grand  jury,  except  upon  the  previous 
order  of  the  court.27  In  Connecticut,  the  extraordinary 
method  is  in  force  of  allowing  the  defendant  to  be  present  dur- 
ing the  examination  of  witnesses  before  the  grand  jury,28  but 
his  counsel  will  not  be  admitted  to  their  deliberations.29 

If  the  grand  jurors  are  not  satisfied  with  the  evidence  pre- 

18  Post  106  et.  seq. 

19  People  v.  Beatty,  14  Calif.  566;  Ward  v.  State,  2  Mo.  120;  State  v. 
Overstreet,  128  Mo.  470;  People  v.  Green,  i  Utah  n  ;  Beal  v.  State,  15  Ind. 
378;  Rutzell  v.  State,  15  Ark.  67. 

20  People  v.  Beatty,  14  Calif.  566;  State  v.  Overstreet,  128  Mo.  470. 

21  Territory  v.  Corbett,  3  Mont.  50. 

22  People  v.  Beatty,  14  Calif.  566;  Com.  v.  Gee,  60  Mass.  174;  Allen  r. 
State,  5  Wis.  329.    But  see  Stark  v.  Bindley,  52  N.  E.  804. 

23  i  Chitty  Cr.  Law  317;  U.  S.  v.  Terry,  39  Fed.  Rep.  355. 

24  Res.  v.  Shaffer,  i  Dall.  236 ;  U.  S.  v.  Lawrence,  26  Fed.  Cas.  886. 

25  U.  S.  v.  Palmer,  27  Fed.  Cas.  410;  People  v.  Goldenson,  76  Calif.  328. 
But  see  Lung's  Case,  i  Conn.  428;  In  re  Morse,  87  N.  Y.  Sup.  721. 

26  U.  S.  v.  Blodgett,  30  Fed.  Cas.  1157.    In  U.  S.  v.  White,  28  Fed.  Cas. 
588,  the  court  intimated  that  witnesses  for  the  defence  may  be  sent  to  th« 
grand  jury  with  the  consent  of  the  district  attorney. 

27  Mr.  Justice  Field's  Charge  to  the  Grand  Jury,  30  Fed.  Cas.  992. 

28  State  v.  Fasset,  16  Conn.  457.  And  see  State  v.  Walcott,  21  Conn.  272 ; 
State  v.  Hamlin,  47  Conn.  95. 

29  Lung's  Case,  i  Conn.  428. 


IO4  THE   GRAND   JURY. 

sented  by  such  witnesses  as  they  have  heard,  they  may  ask 
that  additional  testimony  be  submitted  to  them.30  This  re- 
quest should  be  made  to  the  court,  who  has  the  sole  power  of 
ordering  that  process  issue  to  produce  any  additional  evidence 
before  the  grand  jury;31  but  in  the  United  States  courts  it  is 
sufficient  if  application  be  made  to  the  district  attorney,  who 
may  direct  that  process  issue.32  Ordinarily  the  grand  jury 
cannot  on  their  own  motion  summon  witnesses  to  appear  be- 
fore them,33  for  they  usually  have  neither  the  right  to  issue 
the  necessary  process  to  command  their  attendance  nor  the 
power  to  punish  if  witnesses  refuse  to  appear. 

In  Tennessee  the  grand  jury  is  vested  by  statute  with  broad 
inquisitorial  powers  in  certain  cases,  and  in  such  instances  they 
may  send  for  witnesses  without  an  order  of  court.34 

In  Missouri35  and  Maryland36  a  grand  jury  is  vested  with 
similar  authority.  But  the  powers  conferred  on  grand  juries 
by  such  statutes  being  in  derogation  of  the  common  law,  can- 
not be  extended  beyond  the  express  provisions  of  the  statute 
itself.37 


30  i  Chitty  Cr.  Law  317;  Dickinson's  Quarter  Sessions,  (5th  ed.)   156- 
158. 

31  The  process  is  issued  by  the  clerk  of  the  court:     O'Hair  v.  People, 
32  111.  App.  277;  Baldwin  v..  State,  126  Ind.  24. 

32  And  see  O'Hair  v.  People,  32  111.  App.  277;  I  Whart  Cr.  Law  Sec. 
490.    But  see  contra  Warner  v.  State  81  Tenn.  52. 

33  In  re  Lester,  77  Ga.  143. 

34  State  v.  Smith,  19  Tenn.  99 ;  Deshazo  v.  State,  23  Tenn.  275 ;  State  v. 
Parrish,  27  Tenn.  80;  Doebler  v.  State,  31  Tenn.  473;  Robeson  v.  State,  50 
Tenn.  266;  State  v.  Adams,  70  Tenn.  647;  State  v.  Estes,  71  Tenn.  168; 
State  v.  Barnes,  73  Tenn,  398;  State  v.  Staley,  71  Tenn.  565;  Glenn  v.  State, 
31  Tenn.  19;  Garret  v.  State,  17  Tenn.  389.    But  see  State  v.  Lee,  87  Tenn. 
114;  State  v.  Lewis,  Id.  119,  for  instances,  where  the  inquisitorial  power  was 
illegally  exercised.     Where  the  grand  jury  is  not  specially  vested  with  this 
authority,  the  general  rule  in  Tennessee  appears  to  be  that  the  witness 
should  be  summoned  to  appear  before  the  court  to  give  evidence  to  the 
grand  jury:    State  v.  Butler,  16  Tenn.  83. 

35  Ward  v.  State,  2  Mo.  120. 

36  Blaney  v.  State,  74  Md.  153.     This  authority  is  not  based  upon  any 
statute  of  Maryland. 

37  Deshazo  v.  State,  23  Tenn.  275 ;  Harrison  v.  State,  44  Tenn.  195 ; 
Robeson  v.  State.  50  Tenn.  266 ;  State  v.  Adams,  70  Tenn.  647. 


OATH   POWERS  AND  DUTIES.  1 05 

When  they  have  heard  all  the  evidence  which  can  be  pro- 
duced, they  are  then  prepared  to  make  their  presentment.  It 
was  formerly  thought  in  England  that  the  grand  jury  should 
present  "in  case  there  be  probable  evidence,"38  but  this  rule  is 
now  altered.39  In  the  Federal  courts40  the  rule  there  prevail- 
ing is  thus  stated  by  Mr.  Justice  Field,41  "To  justify  the  finding 
of  an  indictment  the  grand  jury  must  believe  that  the  accused 
is  guilty.  They  should  be  convinced  that  the  evidence  before 
them,  unexplained  and  uncontradicted,  would  warrant  a  con- 
viction by  a  petit  jury."42  This  is  now  the  law  in  Pennsyl- 
vania,43 although  formerly  the  English  rule  obtained.44  The 
same  rule  is  recognized  in  New  York,45  Massachusetts48  and 
Virginia,47  and  has  been  adopted  in  California  by  statute.48 

In  making  diligent  inquiry  and  true  presentment,  the  grand 
jury  is  restricted  to  "such  articles,  matters  and  things  as  shall 
be  given  you  in  charge  or  otherwise  come  to  your  knowledge, 
touching  the  present  service."49  This  clause  of  the  oath  is  the 


38  i  Chitty  Cr.  Law  317;  2  Hale  PI.  C.  157;  i  Whart.  Cr.  Law,  Sec.  492. 
And  see  Co.  Inst.  Vol.  II,  p.  384. 

39  i  Chitty  Cr.  Law  317. 

40  In  re  Grand  Jury,  62  Fed.  Rep.  840. 

41  Charge   to  Grand  Jury,   30   Fed.   Cas.  992;   and   see   Chief  Justice 
Shaw's  Charge  to  Grand  Jury,  8  Am.  Jurist  218. 

42  In  re  Grand  Jury,  62  Fed.  Rep.  840;  People  v.  Hyler,  2  Parker  Cr. 
R.  (N.  Y.)  570.    And  see  4  Bl.  Com.  303;  Sir  John  Hawles,  4  State  Trials 
183 ;  Lord  Somers  on  Grand  Juries,  etc.    In  People  v.  Lindenborn,  52  N. 
Y.  Sup.  101,  it  was  held  that  the  presumption  of  innocence  must  be  over- 
come before  an  indictment  can  legally  be  found.     In  Com.  v.  Dittus,  17 
Lane.  Law  Rev.  (Pa.)  127,  although  three  respectable  witnesses  testified  to 
the  facts,  the  grand  jury  ignored  the  bill.    Judge  Landis  criticised  their 
action  as  being  equivalent  to  the  trial  of  the  cause.    As  they,  however, 
are  the  exclusive  judges  of  the  credibility  of  the  witnesses,  this  criticism 
would  seem  unwarranted. 

43  i   Whart.  Cr.  Law  Sec.  491 ;  7  Smith's  Laws  687 ;   I   Hopkinson's 
Works,  194;  James  Wilson's  Works,  Vol.  II,  p.  365. 

44  Res.  v.  Shaffer,  i  Dall.  236;  Add.  App.  39. 

45  People  v.  Hyler,  2  Parker,  Cr.  R.  (N.  Y.)  570. 

46  Davis  Precedents  of  Indictments,  25. 

47  Davis  Criminal  Law  in  Va.  426. 

48  Penal  Code,  Sec.  921,  People  v.  Tinder,  19  Calif.  539. 

49  Supra.  95. 


106  THE   GRAND    JURY. 

grant  of  power  to  the  grand  jury,  but  the  extent  of  the  powers 
under  this  grant  have  not  received  a  like  construction  in  the 
various  jurisdictions.  It  has  been  the  tendency  in  Pennsyl- 
vania50 to  restrict  this  power  within  the  narrowest  lines,  while 
the  Federal  courts,  like  the  English  courts,  permit  a  very  wide 
exercise  of  it.  The  first  view  is  set  forth  in  a  celebrated  opin- 
ion rendered  by  Judge  King51  in  1845.  After  describing  how 
the  ordinary  mode  of  instituting  prosecutions  is  by  arrest  on  a 
warrant  based  upon  an  affidavit,  with  a  subsequent  binding 
over  of  the  defendant  or  holding  him  in  bail  to  answer  at  court, 
and  detailing  the  subsequent  steps  whereby  a  bill  charging  the 
offence  is  submitted  by  the  district  attorney  to  the  grand  jury, 
and  which  is  either  returned  a  true  bill  or  ignored,  he  then  de- 
scribes the  extraordinary  modes  of  criminal  procedure  which 
may  be  pursued,  in  the  following  words : 

"The  first  of  these  is,  where  criminal  courts  of  their  own 
motion  call  the  attention  of  grand  juries  to  and  direct  the  in- 
vestigation of  matters  of  general  public  import,  which,  from 
their  nature  and  operation  in  the  entire  community,  justify 
such  intervention.  The  action  of  the  court  on  such  occasions, 
rather  bear  on  things  than  persons;  the  object  being  the  sup- 
pression of  general  and  public  evils,  affecting  in  their  in- 
fluence and  operation  communities  rather  than  individuals 
and  therefore,  more  properly  the  subject  of  general  than  spec- 
ial complaint.  Such  as  great  riots  that  shake  the  social  fabric, 
carrying  terror  and  dismay  among  the  citizens;  general  pub- 
lic nuisances  affecting  the  public  health  and  comfort;  multi- 
plied and  flagrant  vices  tending  to  debauch  and  corrupt  the 
public  morals,  and  the  like.  In  such  cases  the  courts  may  prop- 
erly in  aid  of  inquiries  directed  by  them,  summon,  swear,  and 
send  before  the  grand  jury,  such  witnesses  as  they  may  deem 
necessary  to  a  full  investigation  of  the  evils  intimated,  in  order 
to  enable  the  grand  jury  to  present  the  offence  and  the  offend- 
ers. But  this  course  is  never  adopted  in  case  of  ordinary 
crimes,  charged  against  individuals.  Because  it  would  in- 
volve, to  a  certain  extent,  the  expression  of  opinion  by  antici- 

50  McCullough  v.  Com.  67  Pa.  30. 

51  Case  of  Lloyd  and  Carpenter,  3  Clark  (Pa.)  188. 


OATH   POWERS  AND  DUTIES. 

pation,  on  facts  subsequently  to  come  before  the  courts  for  di- 
rect judgment;  and  because  such  cases  present  none  of  those 
urgent  necessities  which  authorize  a  departure  from  the  ordin- 
ary course  of  justice.  In  directing  any  of  these  investiga- 
tions, the  court  act  under  their  official  responsibilities,  and 
must  answer  for  any  step  taken,  not  justified  by  the  proper 
exercise  of  a  sound  judicial  discretion. 

"Another  instance  of  extraordinary  proceedings,  is  where 
the  attorney  general  ex-officio  prefers  an  indictment  before  a 
grand  jury,  without  a  previous  binding  over  or  commitment 
of  the  accused.  That  this  can  be  lawfully  done  is  undoubted. 
And  there  are  occasions  where  such  an  exercise  of  official  au- 
thority would  be  just  and  necessary,  such  as  where  the  accused 
has  fled  the  justice  of  the  state,  and  an  indictment  found,  may 
be  required  previous  to  demanding  him  from  a  neighboring 
state,  or  where  a  less  prompt  mode  of  proceeding  might  lead 
to  the  escape  of  a  public  offender.  In  these,  however,  and  in 
all  other  cases,  where  this  extraordinary  authority  is  exercised 
by  an  attorney  general,  the  citizen  affected  by  it  is  not  with- 
out his  guarantees.  Besides,  the  intelligence,  integrity,  and 
independence,  which  always  must  be  presumed  to  accompany 
high  public  trust,  the  accused  unjustly  grieved  by  such  a  pro- 
cedure, has  the  official  responsibility  of  the  officer  to  look  to.  If 
an  attorney  general  should  employ  oppressively,  this  high 
power,  given  to  him  only  to  be  used  when  positive  emergencies 
or  the  special  nature  of  the  case  requires  its  exercise,  he  might 
be  impeached  and  removed  from  office  for  such  an  abuse.  The 
court,  too,  whose  process  and  power  is  so  misapplied,  should 
certainly  vindicate  itself,  by  protecting  the  citizen.  In  prac- 
tice, however,  the  law  officer  of  the  commonwealth  always 
exercises  this  power  cautiously;  generally  under  the  direc- 
tion of  the  court,  and  never  unless  convinced  that  the  general 
public  good  demands  it. 

"The  third  and  last  of  the  extraordinary  modes  of  criminal 
procedure  known  to  our  penal  code,  is  that  which  is  origin- 
ated by  the  presentment  of  a  grand  jury.  A  presentment, 
properly  speaking,  is  the  notice  taken  by  a  grand  jury  of  any 
offence  from  their  own  knowledge  or  observation,  without  a 


108  THE   GRAND   JURY. 

bill  of  indictment  being  laid  before  them  at  the  suit  of  the 
commonwealth.  Like  an  indictment,  however,  it  must  be  the 
act  of  the  whole  jury,  not  less  than  twelve  concurring  on  it. 
It  is,  in  fact,  as  much  a  criminal  accusation  as  an  indictment, 
except  that  it  emanates  from  their  own  knowledge,  and  not 
from  the  public  accuser,  and  except  that  it  wants  technical 
form.  It  is  regarded  as  instructions  for  an  indictment.  That 
a  grand  jury  may  adopt  such  a  course  of  procedure,  without  a 
previous  preliminary  hearing  of  the  accused,  is  not  to  be  ques- 
tioned by  this  court." 

The  other  view  was  expressed  in  an  equally  able  manner  by 
Mr.  Justice  Field52  in  1872.  "Your  oath  requires  you  to 
diligently  inquire  and  true  presentment  make,  'of  such  arti- 
cles, matters  and  things  as  shall  be  given  you  in  charge,  or 
otherwise  come  to  your  knowledge  touching  the  present  ser- 
vice.' 

"The  first  designation  of  subjects  of  inquiry  are  those  which 
shall  be  given  you  in  charge;  this  means  those  matters  which 
shall  be  called  to  your  attention  by  the  court,  or  submitted  to 
your  consideration  by  the  district  attorney.  The  second  desig- 
nation of  subjects  of  inquiry  are  those  which  shall  otherwise 
come  to  your  knowledge  touching  the  present  service;  this 
means  those  matters  within  the  sphere  of  and  relating  to  your 
duties  which  shall  come  to  your  knowledge,  other  than  those 
to  which  your  attention  has  been  called  by  the  court  or  sub- 
mitted to  your  consideration  by  the  district  attorney. 

"But  how  come  to  your  knowledge? 

"Not  by  rumors  and  reports,53  but  by  knowledge  acquired 
from  the  evidence  before  you,  or  from  your  own  observations. 
Whilst  you  are  inquiring  as  to  one  offence,  another  and  differ- 
ent offence  may  be  proved,  or  witnesses  before  you  may,  in  tes- 
tifying, commit  the  crime  of  perjury. 

"Some  of  you,  also,  may  have  personal  knowledge  of  the 


52  Charge  to  Grand  Jury,  30  Fed.  Cas.  992. 

53  It  is  of  interest  to  note  the  change  in  the  law  as  thus  laid  down  by 
Mr.  Justice  Field  from  that  prevailing  in  the  time  of  Glanville  and  Brae- 
ton.     Then  the  accusing  body  was  generally  obliged  to  present  upon  rumo* 
alone.     See  Supra,  part  i,  generally. 


OATH   POWERS  AND  DUTIES.  ICQ 

commission  of  a  public  offence  against  the  laws  of  the  United 
States,  or  of  facts  which  tend  to  show  that  such  an  offence  has 
been  committed,  or  possibly  attempts  may  be  made  to  influence 
corruptly  or  improperly  your  action  as  grand  jurors.  If  you 
are  personally  possessed  of  such  knowledge,  you  should  dis- 
close it  to  your  associates ;  and  if  any  attempts  to  influence  your 
action  corruptly  or  improperly  are  made,  you  should  inform 
them  of  it  also,  and  they  will  act  upon  the  information  thus 
communicated  as  if  presented  to  them  in  the  first  instance  by 
the  district  attorney. 

"But  unless  knowledge  is  acquired  in  one  of  these  ways,  it 
cannot  be  considered  as  the  basis  for  any  action  on  your  part. 

"We,  therefore,  instruct  you  that  your  investigations  are  to 
be  limited : — 

"First.  To  such  matters  as  may  be  called  to  your  attention 
by  the  court :  or 

"Second.  May  be  submitted  to  your  consideration  by  the 
district  attorney :  or 

"Third.  May  come  to  your  knowledge  in  the  course  of 
your  investigations  into  the  matters  brought  before  you,  or 
from  your  own  observations:  or 

"Fourth.  May  come  to  your  knowledge  from  the  dis- 
closures of  your  associates. 

"You  will  not  allow  private  prosecutors  to  intrude  them- 
selves into  your  presence,  and  present  accusations.  Generally 
such  parties  are  actuated  by  private  enmity,  and  seek  merely 
the  gratification  of  their  personal  malice. 

"If  they  possess  any  information  justifying  the  accusation 
of  the  person  against  whom  they  complain,  they  should  impart 
it  to  the  district  attorney,  who  will  seldom  fail  to  act  in  a 
proper  case.  But  if  the  district  attorney  should  refuse  to  act, 
they  can  make  their  complaint  to  a  committing  magistrate,  be- 
fore whom  the  matter  can  be  investigated,  and  if  sufficient  evi- 
dence be  produced  of  the  commission  of  a  public  offence  by 
the  accused,  he  can  be  held  to  bail  to  answer  to  the  action  of 
the  grand  jury." 

It  will  consequently  be  seen  from  the  opinions  of  Judge 
King  and  Mr.  Justice  Field  that  the  powers  of  the  grand  jury 


110  THE   GRAND    JURY. 

in  Pennsylvania  and  the  Federal  courts  coincide  in  these  par- 
ticulars : 

1.  That  they  may  present  such  matters  as  are  given  them 
in  charge  by  the  district  attorney,  by  means  of  bills  submitted 
to  them  based  upon  the  return  of  the  committing  magistrate, 
or  with  the  investigation  of  which  they  are  specially  charged 
by  the  court.54 

2.  That  they  may  present  such  matters  as  are  within  the 
actual  knowledge  of  one  of  the  grand  jurors,  the  facts  of 
which  are  communicated  by  him  to  his  fellow  jurors. 

3.  That  they  may  present  where  the  district  attorney,  upon 
his  official  responsibility,  submits  a  bill  to  the  grand  jury  with- 
out a  previous  commitment  or  binding  over,  in  cases  where 
the  defendant  is  a  fugitive  from  justice,  and  when  emergencies 
may  require  that  he  should  act  promptly. 

But  the  Federal  grand  juries  have  the  additional  power  of 
presenting  such  offences  as  come  to  their  knowledge  while 
they  are  investigating  other  matters,  through  the  testimony  of 
the  witnesses  appearing  before  them.55  This  method  of  pro- 
cedure has  been  held  to  be  unlawful  by  the  Supreme  Court  of 
Pennsylvania.56 

The  right  of  the  district  attorney  to  prefer  a  bill  of  indict- 
ment to  the  grand  jury  upon  his  official  responsibility  and 
without  leave  of  court  is  now  firmly  established  both  in  the 
Federal  courts57  and  in  the  courts  of  Pennsylvania,58  but  this 

54  For  instances  where  the  grand  jury  has  been  directed  to  investigate 
into  matters  specially  submitted  to  them  by  the  court,  see  Hartranft's  Ap- 
peal, 85  Pa.  433 ;  Com.  v.  Green,  126  Pa.  531 ;  Com.  z>.  Kurd,  177  Pa.  481 ; 
Charge  to  Grand  Jury,  5  Dist.  Rep.  (Pa.)  130;  Com.  v.  Kulp,  17  Pa.  C.  C. 
Rep.  561 ;  Bucks  County  Grand  Jury,  24  Pa.  C.  C.  Rep.  162 ;  Com.  v.  Wil- 
son, 2  Chester  Co.  Rep.   (Pa.)  164. 

55  Supra.   108,  109. 

56  Com.  v.  Green,  126  Pa.  531;  Com.  v.  McComb,  157  Pa.  611.    And  see 
State  v.  Love,  4  Humph.  (Tenn.)  255;  Harrison  v.  State,  4  Cold  (Tenn.) 
195- 

57  U.  S.  v.  Fuers,  25  Fed.  Cas.  1223;  U.  S.  v.  Thompkins,  28  Fed.  Cas. 
89. 

58  Rowand   v.    Com.    82    Pa.    405;    Com.    v.    Clemmer,    190    Pa.   202; 
Com.    v.    Beldham,     15     Pa.     Superior    Ct.    33;     Com.    v.    Brown,   23 
Pa.  Superior  Ct.  470;  Com.  v.  Delemater,  2  Dist.  Rep.   (Pa.)  562;  Com. 
v.   Whitaker,  25    Pa.   C.    C.   42;    Com.   v.   Reynolds,   2   Kulp    (Pa.)    345; 


OATH   POWERS  AND  DUTIES.  Ill 

right  has  invariably  been  stoutly  opposed  by  defendants,  and 
the  exercise  of  it  may  well  be  the  subject  of  criticism  in  view 
of  the  very  weak  foundation  upon  which  the  decisions  have 
been  made  to  rest.  The  inherent  weakness  of  it  is  perhaps 
best  observed  in  the  fact  that  the  district  attorney  rarely  exer- 
cises the  right  without  first  obtaining  leave  of  court,69  and 
those  decisions  which  are  most  frequently  quoted  as  sustain- 
ing the  right  invariably  contain  the  proviso,  "with  leave  of 
court" 

Treating  of  the  right  of  the  attorney  general  to  thus  act 
upon  his  official  responsibility  without  leave  of  court,  Judge 
King  says,60  "that  this  can  be  lawfully  done  is  undoubted,"  and 
his  ability  and  learning  make  his  opinion  of  great  weight. 
But  he  cites  no  authority  in  support  of  the  doctrine  which  he 
states  so  positively,  and  in  the  case  of  Commonwealth  v. 
English,61  Judge  Pratt,  while  he  cites  and  follows  the  doctrine 
thus  laid  down,  admits  that  the  opinion  of  Judge  King  upon 
this  point  may  be  considered  obiter  dictum."  In  the  cases  of 
McCullough  v.  Commonwealth,62  and  Brown  v.  Common- 
wealth,63 while  the  right  of  the  district  attorney,  with  the  leave 
of  court,  to  send  in  bills  of  indictment  to  the  grand  jury  with- 
out any  prior  prosecution  has  been  distinctly  affirmed,  the  right 


Com.  v.  Shupp,  6  Kulp  (Pa.)  430;  Com.  v.  Schall,  6  York  Leg.  Rec.  24; 
Com.  v.  English  n  Phila.  (Pa.)  439;  Com.  v.  Simons,  6  Phila.  (Pa.)  167; 
Com.  v.  Wetherold,  2  Clark  (Pa.)  476.  Case  of  Lloyd  and  Carpenter,  3 
Clark  (Pa.)  188;  Com.  v.  Green,  126  Pa.  531 :  In  this  latter  case  the  court 
granted  leave  to  the  district  attorney  to  lay  an  indictment  before  the  grand 
jury.  In  Com.  v.  Jadwin,  2  Law  T.  (N.  S.)  13,  a  defendant  was  discharged 
at  the  preliminary  hearing  by  the  magistrate  and  the  district  attorney 
subsequently  laid  a  bill  before  the  grand  jury  upon  his  official  responsibil- 
ity which  was  returned  a  true  bill.  The  court  quashed  the  indictment. 
See  also  Com.  v.  Moister,  3  Pa.  C.  C.  539;  Com.  v.  Shubel,  4  Pa.  C.  C.  12. 

59  Com.  v.  Sheppard,  20  Pa.  Superior  Ct.  417. 

60  Case  of  Lloyd  and  Carpenter,  3  Clark  (Pa.)  188  . 

61  ii  Phila.  (Pa.)  439. 

62  67  Pa.  30.    In  this  case  the  indictment  was  based  upon  the  return  of 
a  constable.    In  Com.  v.  Pfaff,  5  Pa.  Dist  Rep.  59,  it  was  held  that  an  in- 
dictment based  on  a  constable's  return  should  not  be  sent  to  the  grand 
jury  without  special  leave  of  court. 

63  76  Pa.  319. 


112  THE    GRAND    JURY. 

of  this  officer  to  do  so  without  leave  of  court  is  nowhere 
shown. 

In  the  case  of  Rowand  v.  Commonwealth,64  the  assignments 
of  error  unfortunately  failed  to  raise  this  point,  and  raised 
only  questions  which  were  then  well  settled.  The  grand  jury 
in  this  case  ignored  the  bill  and  the  district  attorney  without 
leave  of  court  sent  a  new  bill  to  a  subsequent  grand  jury,  which 
returned  a  true  bill.  Judge  White  in  his  opinion  in  the  court 
below  upon  a  motion  to  quash  the  indictment  said,  "I  doubt 
not  the  power  of  the  court,  on  cause  shown  upon  affidavit,  to 
direct  a  bill  to  be  sent  back  to  be  reconsidered  by  the  same  or 
a  subsequent  grand  jury.  But  in  the  absence  of  such  direc- 
tion by  the  court,  I  doubt  the  legality,  and  very  much  condemn 
the  practice  of  sending  up  the  same  bill  (or  one  just  like  it, 
based  on  the  same  information)  to  a  subsequent  grand  jury, 
after  it  has  been  ignored  by  one  grand  jury.  Ordinarily  an 
ignoramus  should  be  the  end  of  the  case.  If  I  were  acting 
on  my  own  judgment  I  would  quash  these,  but  as  I  have  been 
informed  that  the  course  pursued  in  these  cases  has  been  al- 
ways sustained  by  this  court,  I  shall  conform  to  that  practice 
and  refuse  these  motions" 

Mr.  Justice  Woodward,  who  delivered  the  opinion  of  the 
Supreme  Court,  said,  "But  principles  have  been  long  settled 
which  require  that  the  action  of  the  district  attorney  in  these 
cases  shall  be  sustained,"  and  he  rests  this  statement  upon  the 
dictum  of  Judge  King.  He  further  says,  "While,  however, 
the  possession  of  this  exceptional  power  by  prosecuting  officers 
cannot  be  denied,  its  employment  can  only  be  justified  by  some 
pressing  and  adequate  necessity,  when  exercised  without  such 
necessity  it  is  the  duty  of  the  Quarter  Sessions  to  set  the  offi- 
cer's act  aside." 

If,  as  the  learned  judge  says,  the  possession  of  this  excep- 
tional power  by  prosecuting  officers  cannot  be  denied,  then 
surely  it  must  rest  upon  some  clearly  defined  authority.  But 
he  relies  upon  a  statement  for  which  the  author  thereof,  cites 

64  82  Pa.  405.  In  New  York  under  Code  Cr.  Proc.,  Sec.  270,  a  bill  once 
ignored  by  the  grand  jury  cannot  again  be  resubmitted  without  leave  of 
court:  People  v.  Warren,  109  N.  Y.  615. 


OATH   POWERS  AND  DUTIES.  113 

no  authority.  This  question  not  having  been  raised  by  the  as- 
signments of  error,  the  opinion  of  the  court  upon  this  point 
must  consequently  be  regarded  as  obiter  dictum. 

This  question  was  directly  involved  in  a  case  before  Judge 
Pratt,85  who  states,  "After  the  most  careful  examination  of 
the  text  books  and  reports,  I  have  been  able  to  find  but  few  ad- 
judicated cases  on  the  subject,  and  no  one  case  reported  where 
this  authority  has  been  conceded  to  the  attorney  general  or  to 
the  district  attorney,  without  some  qualification;  only,  per- 
haps in  the  case  of  Brown  v.  Commonwealth,  26  P.  F.  Smith, 
319."  He,  however,  attempts  to  show  that  the  powers  now 
claimed  for  the  district  attorney  are  those  which  were  former- 
ly possessed  by  the  attorney  general  and  were  the  same  as 
those  which  Blackstone  states66  were  possessed  by  the  attorney 
general  for  the  crown. 

An  examination  of  the  authority  cited  shows  that  the  attor- 
ney general  only  exercised  this  authority  by  informations  filed 
in  the  Court  of  King's  Bench  for  "such  enormous  misdemean- 
ors as  peculiarly  tend  to  disturb  or  endanger  his  government, 
or  to  molest  or  affront  him  in  the  regular  discharge  of  his  (the 
king's)  royal  functions."87  But  neither  Blackstone  nor  any 
of  the  other  English  authorities  concede  the  right  of  the  at- 
torney general,  ex-officio,  to  lay  before  the  grand  jury  an  in- 
dictment. The  right  of  the  attorney  general  or  the  district 
attorney  to  exercise  this  power  of  proceeding  by  information 
is  swept  away  by  the  Constitution  of  Pennsylvania,  which  pro- 
vides that  no  information  shall  be  filed  for  an  indictable  of- 
fence.88 

That  he  may  exercise  the  same  power  over  indictments  that 
at  common  law  he  exercised  with  regard  to  informations  can- 
not be  conceded,  when  by  constitutional  provisions  he  can  no 
longer  exercise  such  power  in  filing  informations  and  it  never 
existed  in  connection  with  indictments  and  has  not  been  ex- 
tended to  them  by  statute.  In  the  absence  of  clear  evidence  of 

65  Com.  v.  English,  n  Phila.  (Pa.)  439. 

66  4  Bl.  Com.  309. 

67  U.  S.  v.  Shepard,  27  Fed.  Cas.  1056. 

68  Art.  I,  Sec.  10. 

8 


114  THE   GRAND    JURY. 

this  authority  to  so  act,  it  would  appear  improper  to  permit  the 
exercise  of  this  high  power  except  by  leave  of  court. 

In  Commonwealth  v.  Sheppard,69  Rice,  P.  J.,  said:  "In 
such  cases,  that  is,  where  the  indictment  is  sent  up  by  the  dis- 
trict attorney  without  first  obtaining  the  leave  of  the  court,  the 
discretion  of  the  court  may  be  invoked,  and  is  exercisable  upon 
motion  to  quash.  If  the  court  refuses  to  quash,  this,  ordin- 
arily, is  equivalent  to  giving  its  sanction.  If  the  court  sus- 
tains the  motion  to  quash,  this  is  tantamount  to  refusing  its 
approval  of  the  action  of  the  district  attorney." 

Where  the  district  attorney  first  obtains  leave  of  court  to 
send  a  bill  of  indictment  to  the  grand  jury  without  previous 
arrest  and  binding  over,  the  court  will  overrule  a  motion  to 
quash  the  indictment.70  When,  however,  the  initial  step  in 
the  prosecution  is  the  laying  of  the  district  attorney's  bill  be- 
fore the  grand  jury,  it  is  necessary  that  it  should  possess  some 
special  earmark  by  which  it  is  to  be  known  as  his  official  act 
other  than  merely  affixing  his  signature  thereto.71 

The  courts,  having  thus  sustained  the  right  of  the  district 
attorney  to  send  a  bill  of  indictment  to  the  grand  jury  on  his 
official  responsibility  alone,  have  had  no  hesitation  in  support- 
ing the  right  of  the  district  attorney  to  send  to  the  grand  jury 
indictments  charging  offences  which  were  not  included  in  the 
original  informations  made  before  the  magistrate,  and  his 
right  to  so  do  may  now  be  regarded  as  settled.72 


69  20  Pa.  Superior  Ct.  417.    And  see  Com.  v.  Brown,  23  Pa.  Superior 
Ct.  470. 

70  Com.  v.  Leigh,  38  L.  I.  (Pa.)  184;  Com.  v.  Taylor,  12  Pa.  C.  C.  Rep. 
326 ;  Com.  v.  Fehr,  2  Northampton  Co.  Rep.  275 ;  Davidson  v.  Com.  5  Cen. 
Rep.  484;  Com.  v.  Bredin,  165  Pa.  224.    In  Com.  v.  New  Bethlehem  Bor- 
ough, 15  Pa.  Superior  Ct.  158,  Rice,  P.  J.,  says:     "It  is  undoubtedly  true 
that  the  court  has  discretionary  and  revisory  powers  over  what  are  called 
district  attorney  bills,  and  where  the  sanction  of  the  court  to  sending  up 
such  a  bill  has  been  obtained  by  deception,  whether  wilful  or  unintentional, 
it  may  revise  its  action  even  after  the  return  of  an  indictment." 

71  Com.  v.  Griscom,  36  Pitts.  L.  J.  (Pa.)  332.    But  see  Com.  v.  Brown, 
23  Pa.  Superior  Ct.  470. 

72  Com.  v.  Simons,  6  Phila.  (Pa.)  167;  Harrison  v.  Com.  123  Pa.  508. 
See  Com.  v.  Hughes,  11  Pa.  Co.  Ct.  Rep.  470,  where  an  indictment  was 


OATH   POWERS  AND  DUTIES.  115 

In  the  Federal  courts  a  defendant  may  be  proceeded  against 
by  information  in  cases  where  the  offence  is  not  "a  capital  or 
otherwise  infamous  crime,"73  but  it  has  been  held  that  the  right 
to  file  an  information  is  not  a  prerogative  of  the  prosecutor's 
office  and  the  district  attorney  must  first  obtain  leave  of 
court.74  The  court  may  direct  before  granting  leave  that  the 
accused  be  brought  into  court  to  show  cause  why  the  informa- 
tion should  not  be  filed  against  him.76  This  right  to  proceed 
by  information  is  in  addition  to  the  right  to  lay  an  indictment 
before  the  grand  jury  and  may  be  and  sometimes  is  used  when 
the  grand  jury  has  ignored  a  bill.78  The  provisions  of  the 
United  States  Revised  Statutes77  authorizing  the  prosecution 
of  certain  offences  either  by  indictment  or  by  information  do 
not  preclude  the  prosecution  by  information  of  such  other 
offences  as  may  be  so  prosecuted  without  violating  the  consti- 
tution and  United  States  statutes.78 

In  some  of  the  states  provision  has  likewise  been  made  for 
the  prosecution  of  offences  other  than  capital  or  other  infa- 
mous crimes  by  information,  while  in  other  states  even  capi- 
tal crimes  may  be  prosecuted  by  information. 

In  the  exercise  of  their  power,  the  grand  jury  has  frequently 
acted  as  the  defender  of  the  liberty  of  the  press  in  attempted 
prosecutions  for  libel ;  and  have  stood  as  a  shield  between  cour- 
ageous editors  who  have  boldly  endeavored  to  expose  official 
wrong  doing,  and  the  persons  who  have  been  stung  into  action 
by  the  exposures  thus  made.  Two  instances,  however,  have 
occurred  in  Pennsylvania  where  the  public  press  has  made 

quashed  upon  the  ground  that  it  was  for  a  different  offense  than  that  set 
out  in  the  affidavit  upon  which  the  prosecution  was  based. 

73  Cons.  U.  S.  Amend.  V. 

74  U.  S.  v.  Smith,  40  Fed.  Rep.  755 ;  and  see  Walker  v.  People,  22  Colo. 
415 ;  State  v.  De  Serrant,  33  La.  Ann.  979. 

75  U.  S.  v.  Smith,  40  Fed.  Rep.  755 ;  U.  S.  r.  Shepard,  27  Fed.  Cas.  1056. 

76  Ex  Parte  Moan,  65  Calif.  216;  State  v.  Ross,  14  La.  Ann.  364;  State  v. 
Vincent,  36  La.  Ann.  770;  State  v.  Whipple,  57  Vt  637.    CONTRA  State  v. 
Boswell,  104  Ind.  541 ;  Richards  v.  State,  22  Neb.  145.    A  defendant  may  be 
prosecuted  by  information  after  a  nolle  pros,  is  entered  on  a  bill  of  indict- 
ment:    Dye  v.  State,  130  Ind.  87. 

77  Sec.  1022. 

78  Ex  Parte  Wilson,  114  U.  S.  417. 


Il6  THE   GRAND   JURY. 

sharp  attacks  upon  the  grand  jury.  The  grand  jurors  made 
inquiry  of  the  court  as  to  what  redress  they  had  or  what  ac- 
tion could  be  taken.  Judge  Ludlow  advised  them  that  as  an 
official  body  they  had  no  redress  and  could  take  no  action 
against  the  persons  responsible  for  the  publication.79 

The  grand  juror's  oath  enjoins  upon  him  "the  common- 
wealth's counsel,  your  fellows  and  your  own  you  shall  keep 
secret."  We  have  seen  how  the  pledge  of  secrecy  was  en- 
joined upon  the  grand  jury  in  the  time  of  Bracton,  and  how  it 
became  a  part  of  their  oath  prior  to  the  time  of  Britton.  The 
purpose  of  enjoining  secrecy  upon  the  inquest  has  been  a  theme 
for  much  discussion  and  has  produced  many  diverse  views.  Mr. 
Christian  considers  that  its  purpose  was  to  prevent  a  defendant 
from  contradicting  the  testimony  produced  before  the  grand 
jury  by  subornation  of  perjury;80  while  others  hold  that  its 
purpose  was  to  prevent  the  grand  jurors  from  being  overawed 
by  the  power  and  high  connections  of  those  whom  they  should 
present.81  Both  of  these  views  are  attacked  vigorously  by 
Mr.  Bentham82  and  Mr.  Ingersoll,83  the  latter  of  whom  con- 
cedes the  propriety  of  the  secrecy  in  the  time  of  Bracton  that 
the  offender  might  not  escape,  while  contending  that  in  the 
present  day  aspect  of  the  institution  it  no  longer  has  any  pur- 
pose to  serve  and  should  be  abolished. 

While  it  would  seem,  without  doubt,  that  its  original  pur- 
pose was  that  no  offender  should  escape,  it  could  not  be  in- 
sisted upon  by  the  grand  jurors  as  a  matter  of  right.  They 
were  originally  bound  to  disclose  to  the  court  the  grounds 
upon  which  the  inquest  had  acted  and  the  part  each  juror  had 
taken  in  it.  When  the  right  to  deliberate  and  keep  the  man- 
ner in  which  each  juror  had  voted  secret,  first  became  a  pre- 
rogative of  the  grand  jury,  cannot  be  determined.  In  Scar- 

79  Grand  Jury  v.  Public  Press,  4  Brews.  (Pa.)  313;  and  see  Act  June 
16,  1836,  P.  L.  23. 

80  4  Bl.  Com.  126,  Christian's  Note.     The  same  reason  for  the  require- 
ment of  secrecy  is  given  in  the  case  of  Crocker  v.  State,  Meigs  (19  Tenn.) 
127. 

81  Huidekoper  v.  Cotton,  3  Watts  (Pa.)  56. 

82  Rationale  of  Judicial  Evidence,  Vol.  n,  p.  312. 

83  An  Essay  on  the  Law  of  Grand  Juries  (Phila.  1849). 


OATH   POWERS  AND  DUTIES.  117 

let's  case84  we  have  what  is  perhaps  the  last  recorded  instance 
of  the  court  being  informed  by  the  grand  jurors  how  any  mat- 
ter had  come  to  their  knowledge.  Subsequent  to  this,  we  see 
the  crown  exercising  its  alleged  right  to  compel  the  grand 
jury  to  hear  the  evidence  in  open  court,  although  it  did  not  at- 
tempt to  deny  them  the  right  to  deliberate  in  the  privacy  of 
their  own  room,  nor  when  they  refused  to  divulge  why  they 
had  ignored  a  bill  did  the  court  take  any  steps  to  compel  them 
to  do  so.  And  the  last  instance  where  the  grand  jury  were 
even  obliged  to  hear  the  evidence  in  public  seems  to  have  been 
in  Lord  Shaftesbury's  case,88  where  the  grand  jury  so  stoutly 
asserted  their  right  to  hear  the  evidence  only  within  their  own 
room. 

A  very  remarkable  case,  savoring  of  the  methods  pursued 
in  England  in  Lord  Shaftesbury's  case  arose  in  North  Caro- 
lina88 in  1872.  One  Joseph  R.  Branch  was  charged  with  hav- 
ing committed  an  affray  and  with  assault  on  one,  Spier  Whit- 
aker.  The  case  was  heard  by  the  grand  jury,  the  witnesses  be- 
ing Whitaker  and  one  Hardy,  and  the  grand  jury  offered  to 
return  the  bill  "not  a  true  bill"  which  the  court  refused  to  re- 
ceive. The  court  thereupon  directed  the  grand  jurors  to  be 
seated  in  the  jury  box  and  in  open  court  examined  the  same 
witnesses  before  them.  The  judge  then  charged  that  if  the  tes- 
timony was  believed,  a  true  bill  should  be  returned.  The 
grand  jury  accordingly  returned  a  true  bill.  The  defendant 
moved  to  quash  the  indictment,  which  motion  was  refused  and 
an  appeal  was  then  taken  to  the  Supreme  Court  which  reversed 
the  ruling  of  the  lower  court.  In  his  opinion  Pearson,  C.  J., 
says: 

"There  is  nothing  in  our  law  books,  and  no  tradition  of  the 
profession  to  show  that  such  has  ever  been  the  practice  or  the 
course  of  the  courts  in  this  state;  and  we  are  of  opinion  that 
the  ruling  of  his  honor  is  an  innovation  not  warranted  by  the 
law  of  the  land. 

84  12  Co.  98. 

85  8  How.  St.  Tr.  774.    Another  instance  of  the  grand  jury  hearing  the 
evidence  in  public  will  be  found  in  The  Poulterer's  Case,  9  Coke  556. 

86  State  v.  Branch,  68  N.  C.  186. 


Il8  THE   GRAND    JURY. 

"The  power  of  the  judge  to  require  a  grand  jury  to  come 
into  open  court  and  have  the  witnesses  for  the  state  examined, 
is  not  only  opposed  to  immemorial  usage,  but  is  not  sustained 
either  by  principle  or  authority." 

It  was  by  reason  of  this  requirement  of  secrecy  that  in 
England  the  view  obtained  that  a  grand  juror  not  only  could 
not  be  compelled  to  reveal  in  evidence  what  had  transpired  in 
the  grand  jury  room,  but  under  no  circumstances  would  be  al- 
lowed to  voluntarily  do  so.87  This  doctrine,  however,  re- 
ceived its  first  test  in  a  case  mentioned  by  Mr.  Christian,88 
where  a  member  of  a  grand  jury  heard  a  witness  testify  before 
a  petit  jury  contrary  to  what  he  had  testified  before  the  grand 
inquest.  "He  immediately  communicated  the  circumstances 
to  the  judge,  who  upon  consulting  the  judge  in  the  other  court, 
was  of  opinion  that  public  justice  in  this  case  required  that  the 
evidence  which  the  witness  had  given  before  the  grand  jury 
should  be  disclosed;  and  the  witness  was  committed  for  per- 
jury to  be  tried  upon  the  testimony  of  the  gentlemen  of  the 
grand  jury."89 

The  same  view  was  taken  by  Mr.  Justice  Huston  in  a  Penn- 
sylvania case.90  "That  part  of  the  oath,"  he  says,  "as  well  as 
the  whole  of  the  proceeding,  was  intended  to  punish  the  guilty, 
without  risk  to  those  who,  in  performance  of  their  duty,  took 
a  part  in  the  proceeding;  but  it  never  was  intended  to  punish 
the  innocent  or  obstruct  the  course  of  justice." 

The  tendency  is  to  permit  grand  jurors  to  testify  where  it 
will  not  be  revealed  how  any  member  of  the  jury  voted.91 


87  Grand  Jurors  as  Witnesses  (M.  W.  Hopkins)  21  Cen.  L.  J.  104. 

88  4  Bl.  Com.  126,  Christian's  Note. 

89  That  a  witness  who  testifies  falsely  before  the  grand  jury  may  be  in- 
dicted for  perjury  upon  the  testimony  of  the  grand  jurors  or  by  them  of 
their  own  knowledge,  see  i  Chitty  Cr.  Law  322;  U.  S.  v.  Charles,  25  Fed. 
Cas.  409;  R.  v.  Hughes,  i  Car.  &  K.  519;  People  v.  Young,  31  Calif.  563; 
State    v.    Fassett,     16    Conn.    457;    State    v.    Offutt,    4    Blackf.     (Ind.) 
355;  Com.  v.  Hill,  n  Cush.  (Mass.)  137;  Huidekoper  v.  Cotton,  3  Watts 
(Pa.)  56;  State  v.  Terry,  30  Mo.  368;  Crocker  v.  State,  Meigs  (Tenn.)  127; 
Thomas  v.  Com.  2  Robinson  (Va.)  795. 

90  Huidekoper  v.  Cotton,  3  Watts  (Pa.)  56. 

91  Grand  Jurors  as  Witnesses  (M.  W.  Hopkins)  21  Cen.  L.  J.  104. 


OATH   POWERS  AND  DUTIES.  I IQ 

Thus  it  has  been  held  that  a  grand  juror  may  testify  as  to  who 
was  the  prosecutor  upon  a  certain  bill  of  indictment;92  that 
twelve  jurors  concurred  in  the  finding;93  that  a  witness  had 
testified  to  a  different  state  of  facts  when  before  the  grand 
jury;94  that  the  presentment  was  made  upon  facts  not  within 
the  personal  knowledge  of  any  of  the  grand  jurors  ;95  that  for 
the  protection  of  public  or  private  rights,  any  person  may  dis- 
close in  evidence  what  transpired  before  a  grand  jury.98 

In  Iowa97  affidavits  of  the  grand  jurors  were  received  on 
motion  to  quash  the  indictment  to  show  that  the  judge  visited 
the  grand  jury  during  its  deliberation  and  directed  that  an  in- 
dictment should  be  returned  against  a  certain  person  for  a 
certain  offence  and  an  indictment  was  so  found  under  the  ex- 
press instructions  of  the  court. 

The  court  has  permitted  the  record  to  go  in  evidence  to  the 
jury  to  prove  the  time  when  a  witness  testified  before  the 
grand  jury.98  But  a  grand  juror  cannot  testify  to  facts  that 
would  impeach  the  finding  of  the  grand  jury99  or  disclose  how 


92  Huidekoper  v.  Cotton,  3  Watts  (Pa.)  56. 

93  i  Greenleaf  on  Evidence  Sec.  252;  Low's  Case,  4  Greenl.  (Me.)  439; 
Territory  v.  Hart,  7  Mont  489;  State  v.  Logan,  i  Nev.  509;  People  v. 
Shattuck,  6  Abb.   (N.  Y.)  33;  State  v.  Horton,  63  N.  C  595.    But  see 
Gitchell  v.  People,  146  111.  175;  Shoop  v.  People,  45  111.  App.  no;  Hooker  v. 
State,  56  Atl.  390;  State  v.  Baker,  20  Mo.  338. 

94  U.  S.  v.  Porter,  27  Fed.  Cas.  595.     Fotheringham  v.  Adams  Ex.  Co., 
34  Fed.  Rep.  646;  Burnham  v.  Hatfield,  5  Blackf.  (Ind.)  21;  Perkins  v. 
State,  4  Ind.  222;  Kirk  v.  Garrett,  84  Md.  383;  Com.  v.  Mead,  12  Gray 
(Mass.)  167;  Com.  v.  Hill,  11  Cush.  (Mass.)  137;  State  v.  Broughton,  7 
Ired.  (N.  C.)  96;  Gordon  v.  Com.  92  Pa.  216.    And  see  Rocco  v.  State,  37 
Miss.  357.    CONTRA.    I  Greenleaf  on  Evidence,  Sec.  252;  Imlay  v.  Rogers. 
2  Halst.  (N.  J.)  347- 

95  Com.  v.  Green,  126  Pa.  531 ;  Com.  v.  McComb,  157  Pa.  611 ;  Com.  v. 
Kulp.  5  Pa.  Dist.  Rep.  468.    But  see  State  v.  Davis,  41  Iowa,  311. 

96  U.  S.  v.  Farrington,  5  Fed.  Rep.  343 ;  Burdick  v.  Hunt,  43  Ind.  381 ; 
Hunter  v.  Randall,  69  Me.  183;  Jones  v.  Turpin,  6  Heisk.  (Tenn.)  181. 

97  State  v.  Will,  97  Iowa  58.    And  see  Contra.  Hall  v.  State,  32  So.  750. 

98  Virginia  v.  Gordon,  28  Fed.  Cas.  1224. 

99  U.  S.  v.  Terry,  39  Fed.  Rep.  355 ;  U.  S.  v.  Reed,  27  Fed  Cas,  727 ; 
R.  v.  Marsh,  6  Ad.  &  El.  236;  Spigcner  v.  State,  62  Ala.  383;  Ex  Parte 
Sontag,  64  Calif.  525;  State  v.  Hamlin,  47  Conn.  95;  Simms  v.  State,  60 
Ga.  145;  Gilmore  v.  People,  87  111.  App.  128;  State  v.  Gibbs,  39  Iowa  318; 


I2O  THE    GRAND    JURY. 

any  juror  voted  or  what  they  said  during  their  investiga- 
tions.100 

Where  a  statute  provided  "no  grand  juror  shall  disclose  any 
evidence  given  before  the  grand  jury,"  it  was  held  not  a  vio- 
lation of  the  act  to  state  that  a  certain  person,  naming  him. 
had  testified  before  the  grand  jury,  and  the  subject  matter  upon 
which  he  testified.101  Nor  is  it  a  violation  of  the  grand  juror's 
oath  of  secrecy  to  report  to  the  court  the  fact  that  a  witness  re- 
fuses to  testify.102  If  the  grand  jurors  are  not  required  to  take 
an  oath  of  secrecy,  they  may  be  examined  as  witnesses  touching 
matters  which  came  to  their  knowledge  while  acting  as  grand 
jurors.103 

This  provision  of  secrecy  not  only  surrounds  the  grand 
jurors,  but  also  includes  their  clerk  if  he  be  not  one  of  their 
number,104  and  the  district  attorney.105  They  may  or  may 
not  be  permitted  to  testify  accordingly  as  a  grand  juror  may 
or  may  not  testify.106  But  it  does  not  include  witnesses  who 

State  v.  Davis,  41  Iowa  311;  State  v.  Mewherter,  46  Iowa  88;  Com.  v. 
Skeggs,  66  Ky.  19;  State  v.  Beebe,  17  Minn,  241;  State  v.  Baker,  20  Mo. 
338;  State  v.  Hamilton,  13  Nev.  386;  People  v.  Hulbut,  4  Denio  (N.  Y.) 
133;  People  v.  Briggs,  60  How.  Pr.  Rep.  (N.  Y.)  17;  Ziegler  v.  Com.  22  W. 
N.  C.  (Pa.)  in;  Com.  v.  Twitchell,  I  Brews.  (Pa.)  551;  State  v.  Oxford, 
30  Tex.  428. 

100  U.  S.  v .  Farrington,  5  Fed.  Rep.  343 ;  U.  S.  v .  Kilpatrick,  16  Fed.  Rep. 
765;  Stewart  v.  State,  24  Ind.  142;  State  v.  Lewis,  38  La.  Ann.  680;  Com.  v. 
Twitchell,  I  Brews.  (Pa.)  551. 

101  State  v.  Brewer,  8  Mo.  373.     CONTRA.  State  v.  Baker,  20  Mo.  338; 
Beam  v.  Link,  27  Mo.  261.    And  see  Ex  Parte  Schmidt,  71  Calif.  212; 
Hinshaw  v.  State,  47  N.  E.  157. 

102  People  v.  Kelly,  21  How.  Prac.  Rep.  (N.  Y.)  54;  In  re  Archer,  96  N. 
W.  442;  Heard  v.  Pierce,  8  Cush.  (Mass.)  338. 

103  Granger  v.  Warrington,  8  111.  299. 

104  Trials  per  Pais  (Giles  Duncombe)  Vol.  II,  p.  387;  i  Greenleaf  on 
Evidence,  Sec.  252 ;  State  v.  McPherson,  87  N.  W.  421. 

105  Com.  v.  Twitchell,  i  Brews.  (Pa.)  551;  i  Greenleaf  on  Evidence,  Sec. 
252;  McLellan  v.  Richardson,  13  Me.  82;  i  Bost.  Law  Rep.  4;  Jenkins  v. 
State,  35  Fla.  737.    And  see  State  v.  Grady,  84  Mo.  220,  where  the  prosecut- 
ing attorney  was   required  to  testify.     The  attorney  general  on  plea  in 
abatement  cannot  stipulate  what  the  evidence  was:     People  v.  Thompson, 
81  N.  W.  344- 

106  I  Greenleaf  on  Evidence,  Sec.  252. 


OATH   POWERS  AND  DUTIES.  121 

testify  before  the  grand  jury;  they  may  be  compelled  to  dis- 
close the  testimony  given  by  them.107 

It  has  been  held  that  it  is  not  a  contempt  of  court  for  a 
grand  juror  to  refuse  to  testify  how  he  voted  on  the  finding  of 
a  certain  indictment;  the  court  had  no  authority  to  require 
such  disclosure108  and  in  refusing  to  answer  the  juror  was  act 
ing  strictly  within  his  legal  rights.  In  fact  had  he  so  testified 
in  response  to  the  question  put,  he  would  have  been  guilty  of  a 
violation  of  his  oath. 

The  remaining  portion  of  the  grand  juror's  oath  does  not 
require  special  consideration.  It  is  clear  and  unmistakable 
in  its  terms  and,  consequently,  has  never  been  made  the  sub- 
ject of  judicial  inquiry. 

In  addition  to  the  powers  vested  in  them  by  their  oath  and 
the  common  law,  grand  jurors  have  in  many  instances  other 
duties  imposed  upon  them  by  statute.  In  many  states  grand 
jurors  are  required  by  statute  to  examine  into  the  condition 
of  jails,  asylums  and  other  public  institutions;  examine  the 
books  and  accounts  of  the  various  public  officials  in  the  county, 
fix  the  tax  rate,  and  have  a  general  supervision  over  public  im- 
provements.109 

The  Pennsylvania  statutes  impose  upon  a  grand  jury  cer- 
tain duties  which  relate  to  matters  of  the  general  public  good 
within  the  county.  Thus  it  is  essential  that  the  grand  jury 
should  pass  upon  the  proposition  to  incorporate  a  borough 
within  the  county,110  and  the  court  will  not  review  a  question 
of  fact  as  to  the  incorporation  of  such  borough  when  the  grand 
jury  considers  the  incorporation  necessary.111  No  public 
buildings  may  be  erected  within  the  county  unless  two  succes- 
sive grand  juries  have  approved  of  the  erection  of  such  build- 
ings,112 and  likewise  no  county  bridge  may  be  erected  unless 

107  People  v.  Young,  31  Calif.  563;  People  r.  Northey,  77  Calif.  618: 
People  v.  Naughton,  38  How.  Prac.  Rep.  430. 

108  Ex  Parte  Sontag,  64  Calif.  525. 

109  See  Thompson  and  Merriam  on  Juries,  Sec.  473-474. 

1 10  Act  April  i,  1834,  P.  L,  163;  Act  June  2,  1871,  P.  L.  283;  Act  May 
26,  1891,  P.  L.  120. 

in  Millville  Borough,  10  Pa.  C.  C.  Rep.  321. 

112  Act  April  15,  1834,  P.  L.  539;  Act  June  I,  1883,  P.  L.  58. 


122  THE    GRAND    JURY. 

two  successive  grand  juries  shall  determine  that  it  is  neces- 
sary.113 

In  Connecticut114  the  town  meeting  chooses  annually  not  less 
than  two  nor  more  than  six  grand  jurors  who  are  charged  to 
"diligently  inquire  after  and  make  complaint  of  all  crimes  and 
misdemeanors  that  shall  come  to  their  knowledge,  to  the 
court  having  cognizance  of  the  offence,  or  to  some  justice  of 
the  peace  in  the  town  where  the  offence  is  committed,"  and 
they  have  power  to  require  the  person  who  informs  them  of 
the  offence  to  make  a  proper  information  under  oath  and  ad 
minister  to  them  the  oath  of  a  witness.  In  Georgia115  they  ar* 
authorized  to  act  as  a  board  of  revision  of  taxes,  and  examine 
statements  of  the  county  liabilities  and  fix  the  rate  of  tax  nec- 
essary to  discharge  such  liabilities.  They  are  also  required 
to  ascertain  the  condition  of  the  county  treasury.  In  Missis- 
sippi116 they  are  obliged  to  examine  the  tax  collectors'  books 
and  accounts.  In  Alabama117  and  Tennessee118  they  must 
investigate  the  sufficiency  of  the  bonds  of  all  county  officers, 
while  in  Vermont119  grand  jurors  are  charged  by  statute  with 
the  duty  of  arresting  persons  having  liquor  for  sale  contrary 
to  law,  and  may  do  so  without  a  warrant ;  must  seize  the  liquor, 
and  may  arrest  intoxicated  persons  who  have  committed  a 
breach  of  the  peace. 

Grand  jurors  are  in  general  not  called  to  be  sworn  in  any 
cause,120  but  are  sworn  to  inquire  into  all  crimes  which  have 


113  Act  April  29,  1891,  P.  L.  31 ;  Pequea  Creek  Bridge,  68  Pa.  427. 

114  General  Statutes  1875,  p.  241,  Sec.  i;  p.  531,  Sec.  2,  3,  4,  5.    Smith 
v.  State,  19  Conn.  493. 

115  Code  1873,  Sec.  3919;  Sec.  510;  Sec.  3920. 

116  Revised  Code  1880,  Sec.  1675. 

117  Code  1876,  Sec.  4767-68. 

118  Statutes  1871,  Sec.  5079. 

119  General  Statutes  1862,  p.  596,  Sec.  25;  p.  600,  Sec.  33. 

120  U.  S.  v.  Reeves,  27  Fed.  Cas.  750.  In  Indiana,  St.  1825,  p.  21,  authoriz- 
ing special  sessions  of  the  Circuit  Court,  does  not  warrant  the  finding  of  an 
indictment  at  the  special  term  against  any  other  person  than  the  one  for 
whose  trial  the  court  was  convened:     Wilson  v.  State,  I  Blackf.   (Ind.) 
428. 


OATH   POWERS  AND  DUTIES.  123 

been  committed  within  the  county.121  If,  therefore,  when  the 
oath  is  administered  it  embraces  one  or  more  persons  by  name 
whose  cases  are  about  to  be  laid  before  the  grand  jury  and  in 
respect  to  which  the  oath  is  administered  and  nothing  more,  no 
evidence  can  be  given  under  it  in  support  of  any  accusation 
against  others.122 

131  Addison,  App.  36. 

122  U.  S.  v.  Reed,  27  Fed.  Cas.  727.    And  see  Wilson  v.  State,  i  Blackf. 
(Ind.)  428.    CONTRA.  In  re  County  Commissioners,  7  Ohio  N.  P.  4501 


PART  IV 

HOW   THE   GRAND  JURY  TRANSACTS   BUSINESS  AND   ITS   RELA- 
TION  TO   THE   COURT. 

When  the  grand  jurors  have  been  duly  empaneled  and 
sworn,  the  court  delivers  to  them  a  charge  ordinarily  in 
relation  to  their  duties  and  those  matters  concerning  which 
they  may  be  called  upon  to  investigate.1  At  times  the  court 
may  thus  commit  specially  to  their  care,  matters  of  great  public 
importance.2  Judge  Addison,  in  his  charges  to  grand  juries, 
availed  himself  of  the  opportunity  in  that  early  stage  of  our 
Federal  government,  to  inculcate  in  the  citizens  through  the 
medium  of  the  grand  jury,  a  better  knowledge  of  our  political 
institutions,  the  theory  of  government,  the  relations  between 
the  government  and  its  subjects,  and  the  subjects  with  each 
other.  Other  eminent  jurists  have  used  it  as  a  means  of  com- 
munication with  the  public.  Judge  Wilson  expressed  the  same 
thought  when  he  said  :3  "The  grand  jury  are  a  great  channel  of 
communication,  between  those  who  make  and  administer  the 
laws,  and  those  for  whom  the  laws  are  made  and  adminis- 
tered." 

In  the  press  of  business  at  the  present  day,  it  is  rare,  in  the 
absence  of  some  event  of  great  public  importance  which  the 
court  deems  it  necessary  the  grand  jury  should  consider,  for 

i  While  it  is  the  duty  of  the  court  to  charge  the  grand  jury,  it  will 
not  invalidate  an  indictment  should  this  be  omitted :  Stewart  v.  State,  24 
Ind.  142;  Com.  v.  Sanborn,  116  Mass.  61 ;  State  v.  Froiseth,  16  Minn.  313; 
Clair  v.  State,  40  Neb.  534 ;  Cobb  v.  State,  Id.  545 ;  State  v.  Edgerton,  69 
N.  W.  280;  State  v.  Furco,  51  La.  Ann.  1082.  And  see  State  v.  Will,  97 
Iowa  58;  State  v.  Turlington,  102  Mo.  642.  Nor  will  a  conviction  be  dis- 
turbed: Porterfield  v.  Com.  91  Va.  801. 

2  In  re  Citizens  Association,  8  Phila.   (Pa.)  478. 

3  Jas.  Wilson's  Works,  Vol.  II,  p.  366. 

124 


HOW  THE  GRAND  JURY  TRANSACTS  BUSINESS.  125 

the  court  to  do  more  than  deliver  a  brief  charge  as  to  the  duties 
of  the  grand  jury. 

While  it  is  usual  for  the  court  to  charge  the  grand  jury 
only  when  they  first  enter  upon  their  duties,  it  may  at  any  time 
during  their  period  of  service,  deliver  a  supplementary  charge 
or  charges  to  them  upon  any  particular  matter,  or  upon  any 
special  matter  which  the  district  attorney  may  be  prepared  to 
send  before  them,  or  may  direct  them  to  investigate  any  mat- 
ters of  grave  importance  to  the  public  welfare.  This  is  usually 
done  by  the  court  upon  its  own  motion  or  at  the  request  of  the 
grand  jury  and  probably  would  be  done  upon  motion  of  the 
district  attorney.  Whether  it  will  be  done  upon  motion  of 
counsel  for  a  defendant  whose  case  will  be  considered  by  the 
grand  jury,  has  not  been  settled.4 

This  question  first  arose  in  this  country  upon  the  trial  of 
Aaron  Burr.5  In  the  report  of  the  trial  the  following  appears : 

"Mr.  Burr  called  up  the  motion  for  a  supplemental  charge 
to  the  grand  jury,  in  support  of  which  he  had,  on  yesterday, 
submitted  a  series  of  propositions,  with  citations  of  authori- 
ties. 

"The  Chief  Justice  (Marshall)  stated  that  he  had  drawn 
up  a  supplemental  charge,  which  he  had  submitted  to  the  at- 
torney for  the  United  States,  with  a  request  that  it  should  also 
be  put  into  the  hands  of  Col.  Burr's  counsel;  that  Mr.  Hay 
had,  however,  informed  him  that  he  had  been  too  much  occu- 
pied to  inspect  the  charge  with  attention,  and  deliver  it  to  the 
opposite  counsel ;  but  another  reason  was,  that  there  was  one 
point  in  the  charge  which  he  did  not  fully  approve.  He  should 
not,  therefore,  deliver  his  charge  at  present,  but  should  re- 
serve it  until  Monday.  In  the  meantime  Col.  Burr's  counsel 
could  have  an  opportunity  of  inspecting  it,  and  an  argument 
might  be  held  on  the  points  which  had  produced  an  objection 
from  the  attorney  for  the  United  States." 

It  does  not  appear  in  the  report  of  the  case  that  this  charge 
was  ever  delivered.  The  same  case  discloses,  however,  that  a 

4  Sec  Post  ia6. 

5  U.  S.  v.  Aaron  Burr,  25  Fed.  Cas.  6*. 


126  THE   GRAND   JURY. 

communication  on  the  part  of  the  defendant  was  actually  sent 
to  the  grand  jury  by  the  Chief  Justice: 

"Mr.  McRae  hoped  that  notice  of  his  communication  would 
be  sent  to  the  grand  jury. 

"Mr.  Martin  hoped  that  Col.  Burr's  communication  also 
would  go  along  with  it.  The  Chief  Justice  was  unwilling  to 
make  the  court  the  medium  of  such  communications.  The 
Chief  Justice  subsequently  reduced  the  communications  to 
writing  and  sent  them  to  the  grand  jury." 

What  would  seem  to  be  the  true  rule  in  such  instances  was 
laid  down  by  Judge  Cranch,  who  said;8  "The  court  may  in 
its  discretion,  give  an  additional  charge  to  the  grand  jury,  al- 
though they  should  not  ask  it;  and  when  they  do  ask  it,  the 
court  may,  perhaps,  be  bound  to  give  it,  if  it  be  such  an  in- 
struction as  can  be  given  without  committing  the  court  upon 
points  which  might  come  before  them  to  be  decided  on  the 
trial  in  chief.  When  an  instruction  to  the  grand  jury  is  asked 
either  by  the  accused  or  the  prosecutor,  it  is  a  matter  of  dis- 
cretion with  the  court  to  give  the  instruction  or  not,  consider- 
ing the  extent  of  the  prayer,  and  all  the  circumstances  under 
which  it  is  asked." 

The  fact  that  a  portion  only  of  the  grand  jurors  were  spec- 
ially advised,  at  their  request,  as  to  the  law  governing  the  case 
then  under  consideration,  will  not  invalidate  an  indictment 
found  by  such  grand  jury.7 

The  charge  of  the  court  delivered  to  the  grand  jury  will 
not,  in  general,  be  ground  for  setting  aside  the  indictment 
even  though  highly  inflammatory  language  be  used,8  unless 
the  court  should  so  charge  with  relation  to  a  specific  case  to 
come  before  them.9  If  the  charge  be  in  general  terms,  no  mat- 
ter how  impolitic  its  delivery  may  be,  a  defendant  can  hardly 
complain  that  he  was  prejudiced  thereby.  Should  the  court 
urge  the  finding  of  a  particular  indictment  or  in  any  manner 

6  U.  S.  v.  Watkins,  28  Fed.  Cas.  419. 

7  State  v.  Edgerton,  69  N.  W.  280. 

8  Parker  v.  Territory,  52  Pac.  361 ;  Clair  v.  State,  28  L.  R.  A.  367 ;  S. 
C.  40  Neb.  534. 

9  State  v.  Turlington,  102  Mo.  642. 


HOW  THE  GRAND  JURY  TRANSACTS  BUSINESS.  I2/ 

endeavor  to  influence  the  finding  of  the  grand  jury,  a  bill  so 
found  will  be  quashed.10 

When  the  court  has  charged  the  grand  jury  as  to  their  duties, 
the  jurors  then  retire  to  their  room  to  consider  the  matters 
which  may  come  before  them.  They  are  there  attended  by  the 
district  attorney11  or  one  of  his  assistants,  who  aids  them  in  ex- 
amining the  witnesses  and  advises  them  upon  questions  of 
law.12  At  common  law  the  grand  jurors  conducted  the  ex- 
amination of  witnesses  themselves,  not  permitting  the  attorney 
for  the  crown  to  enter  the  room,  and  receiving  their  instruc- 
tions as  to  the  law  directly  from  the  court.  In  order  that  the 
crown  officer  might  know  what  evidence  was  given  to  the 
grand  jury  and  perhaps  with  a  view  of  overawing  the  grand 
inquest  when  they  should  retire  to  deliberate,  they  were  in 
several  instances  in  state  prosecutions  required  to  hear  the  evi- 
dence in  open  court,  although  after  so  hearing  it  they  were 
never  denied  the  right  to  again  hear  the  witnesses  in  pri- 
vate.13 In  1794  upon  the  indictment  of  Hardy  and  others 
for  treason,  the  grand  jury  requested  the  attendance  of  the 
solicitor  for  the  crown  for  the  purpose  of  managing  the  evi- 
dence, for  which  leave  of  court  was  first  obtained.14 

It  is  the  general  custom  at  the  present  day  in  all  jurisdictions 
to  permit  the  district  attorney  to  attend  the  grand  jury,15 


10  Blau  v.  State,  34  So.  153;  State  v.  Will,  97  Iowa  58.    And  see  Hall  v. 
State,  32  So.  750;  People  v.  Glen,  173  N.  Y.  395. 

11  Byrd  v.  State,  i  How.  (Miss.)  247.  A  county  attorney  is  in  effect  the 
assistant  to  the  attorney  for  the  commonwealth  and  may  lawfully  conduct 
the  examination  of  witnesses  before  the  grand  jury:  Franklin  v.  Com.  48  S. 
W.  986.  The  district  attorney  may  be  present  to  assist  the  grand  jury  in  dis- 
posing of  township  applications  for  bridge  appropriations  under  Act  of 
April  16,  1870,  (P.  L.  1199)  :    In  re  Bridge  Appropriations,  9  Kulp  (Pa.) 
427. 

12  U.  S.  v.  Cobban,  127  Fed.  Rep.  713;  Shattuck  v.  State,  n  Ind.  473. 
The  powers  and  duties  of  the  grand  jury  do  not  cease  because  there  may 
happen  to  be  no  district  attorney:     State  v.  Gonzales,  26  Tex.  197.    And 
see  U.  S.  v.  McAvoy,  26  Fed.  Cas.  1044. 

13  Supra.  28,  29,  117. 

14  Growth  of  the  Grand  Jury  System  (J.  Kinghorn)  6  Law  Mag.  &  Rev. 
(4th  S.)  380. 

15  Charge  to  Grand  Jury,  30  Fed.  Cas.  992;  Ex  Parte  Crittenden,  6  Fed. 


128  THE    GRAND    JURY. 

but  he  has  no  right  to  be  present  during  the  deliberations  of 
the  grand  jurors16  and  should  withdraw  if  requested  to  do  so  ;1T 
nor  is  it  proper  for  him  to  attempt  to  control  or  influence  the 
action  of  the  grand  jury18  or  to  say  what  effect  should  be  given 
to  the  testimony  adduced  before  them.19  But  the  fact  that  the 
district  attorney  was  present  during  the  deliberations  of  the 
grand  jury  and  the  taking  of  the  vote  is  at  most  an  irregu- 
larity and  no  ground  for  quashing  the  indictment20  in  the  ab- 
sence of  any  averment  and  proof  that  the  defendant  was 
thereby  prejudiced  ;21  likewise  where  after  certain  persons  had 
testified  in  a  particular  case  the  district  attorney  said :  "I 
suppose  you  do  not  want  to  hear  any  more."22  If  the  district 
attorney  should  participate  in  the  deliberations  of  the  grand 
jury,  or  make  any  effort  to  influence  their  finding,  the  indict- 
ment will  be  quashed.23  Private  counsel  for  the  prosecution 


Cas.  822 ;  In  re  District  Attorney  U.  S.,  7  Fed.  Cas.  745 ;  U.  S.  v.  Edger- 
ton,  80  Fed.  Rep.  374;  Shattuck  v.  State,  n  Ind.  473;  Shoop  v.  People,  45 
111.  App.  1 10 ;  State  v.  Adam,  40  La.  Ann.  745 ;  State  v .  Aleck,  41  La.  Ann. 
83;  People  v.  O'Neill,  107  Mich.  556;  Com.  v.  Salter,  2  Pears.  (Pa.)  461; 
State  v.  Mickel,  65  Pac.  484;  State  v.  McNinch,  12  S.  C.  89;  State  v. 
Baker,  33  W.  Va.  319.  See  Anonymous  7  Cow.  (N.  Y.)  563.  Where  the 
county  attorney  is  disqualified,  an  attorney  appointed  to  prosecute  a  case 
may  lawfully  appear  before  the  grand  jury:  State  v.  Kovolosky,  92  Iowa, 
498.  And  see  State  v.  Gonzales,  26  Tex.  197;  U.  S.  v.  Cobban,  127  Fed. 
Rep.  713- 

16  Charge  to  Grand  Jury,  30  Fed.  Cas.  992;  Lung's  Case,  i  Conn.  428; 
Rothschild  v.  State,  7  Tex.  App.  519. 

17  In  re  District  Attorney  U.  S.,  7  Fed.  Cas.  745. 

1 8  Com.  v.  Frey,  n  Pa.  C.  C.  Rep.  523. 

19  Com.  v.  Frey,  n  Pa.  C.  C.  Rep.  523;  Com.  v.  Bradney,  126  Pa.  199. 

20  Com.  v.  Twitchell,  i  Brews.  (Pa.)  551;  U.  S.  v.  Terry,  39  Fed.  Rep. 
355  J  Com.  v.  Bradney,  126  Pa.  199.    And  see  Regent  v.  People,  96  111.  App. 
189. 

21  U.  S.  v.  Terry,  39  Fed.  Rep.  355. 

22  Com.  v.  Salter,  2  Pears.  (Pa.)  461. 

23  Com.  v.  Bradney,  126  Pa.  199;  CONTRA  Hall  v.  State,  32  So.  750.  And 
see  as  to  the  presence  of  other  officers  in  the  grand  jury  room,  Post  139, 
Note  90.  An  indictment  was  quashed  where  private  counsel  entered  the  grand 
jury  room  while  they  were  deliberating  and  advised  them  as  to  their  duty: 
State  v.  Addison,  2  S.  C.  356.    And  see  Miller  v.  State,  28  So.  208. 


HOW  THE  GRAND  JURY  TRANSACTS  BUSINESS.  129 

have  no  right  to  be  present  in  the  grand  jury  room  to  examine 
witnesses  and  the  district  attorney  cannot  authorize  such  ac- 
tion.24 

The  relation  which  should  be  maintained  between  the  dis- 
trict attorney  and  the  grand  jury  is  well  stated  by  Mr.  Justice 
Clark  :2B 

"The  district  attorney  is  the  attendant  of  the  grand  jury: 
it  is  his  duty  as  well  as  his  privilege  to  lay  before  them  mat- 
ters upon  which  they  are  to  pass,  to  aid  them  in  their  examina- 
tion of  witnesses,  and  to  give  them  such  general  instructions 
as  they  may  require.  But  it  is  his  duty  during  the  discussion 
of  the  particular  case,  and  whilst  the  jurors  are  deliberating 
upon  it,  to  remain  silent.  It  is  for  the  jury  alone  to  consider 
the  evidence  and  to  apply  it  to  the  case  in  hand,  any  attempt 
on  the  part  of  the  district  attorney  to  influence  their  action  or 
to  give  effect  to  the  evidence  adduced,  is  in  the  highest  degree 
improper  and  impertinent.  Indeed,  it  is  the  better  practice  and 
the  jurors  have  an  undoubted  right  to  require,  that  he  should 
retire  from  the  room  during  their  deliberations  upon  the  evi- 
dence and  when  the  vote  is  taken  whether  or  not  an  indictment 
shall  be  found  or  a  presentment  made." 

The  tendency  of  the  modern  cases  is  to  hold  that  it  is  the 
"right"  of  the  district  attorney  to  be  present  to  examine  the 
witnesses  and  conduct  the  case  for  the  government.26  That  it 
was  not  his  right  at  common  law  was  conceded  by  the  aban- 
donment of  hearing  the  evidence  in  public  when  the  grand 
jury  refused  to  indict  in  Lord  Shaftesbury's  case.27  In  the 
absence  of  any  statute  which  grants  this  right  to  him,  it  would 

24  Durr  v.  State,  53  Miss.  425;  People  v.  Scannell,  72  N.  Y.  Sup.  449; 
State  v.  Heaton,  56  Pac.  843.    But  see  Wilson  v.  State,  51   S.  W.  916, 
where  private  counsel  was  present  on  the  invitation  of  the  district  attor- 
ney and  examined  the  witnesses,  but  was  not  present   when  the  grand 
jury  was  deliberating.    And  see  People  v.  Bradner,  44  Hun  (N.  Y.)  233; 
Blevins  v.  State,  68  Ala.  92.    This  forms  no  ground  for  reversing  a  judg- 
ment:   State  v.  Whitney,  7  Ore.  386. 

25  Com.  v.  Bradney,  126  Pa.  199. 

26  In  re  District  Attomev  U.  S.,  7  Fed.  Cas.  745;  Com.  v.  Salter,  2 
Pears.  (Pa.)  461. 

27  Supra.   117. 


13°  THE   GRAND   JURY. 

seem  that  the  common  law  rule  is  still  in  force  and  that  the 
presence  of  the  district  attorney  in  the  grand  jury  room,  even 
for  the  purpose  of  examining  witnesses,  is  not  by  reason  of 
his  right,  but  as  a  matter  of  grace  on  the  part  of  the  grand 
jury. 

The  Pennsylvania  statute  under  which  the  office  of  dis- 
trict attorney  was  created  provides:28  "The  officer  so  elected 
shall  sign  all  bills  of  indictment,  and  conduct  in  court  all  crim- 
inal or  other  prosecutions."  This  statute  does  not  expressly 
give  him  the  power  to  conduct  proceedings  before  the  grand 
jury ;  can  this  authority  be  said  to  be  implied  by  it  ?  That  the 
grand  jury  is  in  court  although  not  in  open  court  will  admit  of 
no  question.  The  direction  therefore  that  the  district  attorney 
shall  conduct  in  court  all  criminal  proceedings,  would  seem  to 
be  ample  authority  to  conduct  all  parts  of  the  prosecution  from 
the  time  it  first  conies  into  court,  usually  on  the  return  of  the 
magistrate,  until  the  case  is  finally  disposed  of,  either  by  the 
acquittal,  or  conviction  and  sentence  of  the  defendant.28* 

There  are  two  ways  in  which  a  grand  jury  may  act  in  order 
to  put  a  defendant  upon  his  trial. 

I.  By  presentment.29 

II.  By  indictment. 

A  presentment  is  the  notice  taken  by  a  grand  jury  of  any 
offence  from  their  own  knowledge  or  observation  upon  which 
the  officer  of  the  court  must  afterwards  frame  an  indictment 
before  the  party  presented  can  be  put  to  answer  it.30 


28  Act  May  3,  1850,  P.  L.  654. 

28*  See  the  discussion  in  State  v.  Warner,  165  Mo.  413  of  the  authority 
of  the  district  attorney  in  the  conduct  of  criminal  prosecutions. 

29  In  California  the  constitution  of  1879  omits  all  reference  to  "present- 
ments," and  consequently  a  "presentment''  by  a  grand  jury  is  unauthorized: 
In  re  Grosbois,  109  Calif.  445.    In  Georgia,  Code  Sec.  4632,  obliterates  the 
distinction  between  presentments  and  indictments :     Groves  v.   State,  73 
Ga.  205. 

30  4  Bl.  Com.  301 ;  Mr.  Justice  Field's  Charge  to  Grand  Jury,  30  Fed. 
Cas.  992.    And  see  Collins  v.  State,  13  Fla.  651.    In  Com.  v.  Towles,  5 
Leigh  (Va.)  743,  the  defendant  was  obliged  to  answer  to  the  presentment 
of  the  grand  jury  and  was  tried  thereon.     For  a  similar  case  see  Smith  v. 
State,  I  Humph.  (Tenn.)  396. 


HOW  THE  GRAND  JURY  TRANSACTS  BUSINESS.  13! 

The  Constitution  of  the  United  States  provides  :3i  "No  per- 
son shall  be  held  to  answer  for  a  capital  or  otherwise  infamous 
crime,  unless  on  a  presentment  or  indictment  of  a  grand  jury." 
The  provision  is  in  the  disjunctive  and  Chief  Justice  Marshall 
makes  the  pertinent  inquiry,82  "Is  it  the  indictment  or  present- 
ment he  is  to  answer?"  Judge  Addison  expresses  the  opin- 
ion33 that  a  defendant  under  this  provision  may  be  required  to 
plead  to  the  presentment  without  a  formal  indictment  based 
upon  the  presentment  being  submitted  to  the  grand  jury  and 
returned  a  true  bill  by  them.  His  view  undoubtedly  receives 
strong  support  from  the  use  of  the  conjunction  or  in  this 
clause ;  but  opposed  to  it  is  the  practice  at  common  law,  which 
has  been  universally  adopted  in  this  country,  of  framing  an 
indictment  upon  the  presentment  and  submitting  it  to  the  grand 
jury  for  their  action.  Chief  Justice  Marshall  observes34  that 
the  indictment  "is  precisely  the  first  presentment,  corrected 
in  point  of  form  .  .  .  .  to  be  considered  as  one  and  the 
same  act,  and  that  the  second  is  only  to  be  considered  as  an 
amendment  of  the  first." 

Irrespective  of  the  question  of  the  right  of  the  government 
to  require  a  defendant  to  plead  to  and  be  tried  upon  a  present- 
ment without  an  indictment  being  founded  upon  it,  the  lack  of 
"technical  form"  in  the  presentment  makes  it  necessary  that  it 
should  serve  only  as  the  basis  of  an  indictment,  otherwise  in 
many  instances  a  defendant  would  escape  by  the  failure  of  the 
presentment  to  properly  charge  an  offence  against  the  statutes. 

An  indictment  is  a  written  accusation  of  one  or  more  per- 
sons of  a  crime  or  misdemeanor,  preferred  to  and  presented 
upon  oath  by  a  grand  jury.88 

In  Pennsylvania  as  a  legal  presentment  can  only  be  made 
where  the  offence  charged  is  within  the  personal  knowledge 

31  Amendment  V. 

32  U.  S.  v.  Hill,  26  Fed.  Cas.  315. 

33  Addison,  App.  38. 

34  U.  S.  v.  Hill,  26  Fed.  Cas.  315. 

35  4  Bl.  Com.,  301.    The  court  may  order  an  indictment  to  be  sent  to 
the  grand  jury  without  a  previous  presentment:  U.  S.  v.  Madden,  26  Fed. 
Cas.  1138;  U.  S.  r.  Thompkins,  28  Fed.  Cas.  89. 


132  THE    GRAND    JURY. 

of  at  least  one  of  the  grand  jurors,  and  the  presentment  is  the 
result  of  his  disclosure  of  knowledge  to  his  associates,  it  fol- 
lows that  there  are  no  witnesses  to  testify  before  the  grand 
jury  in  support  of  it,36  although  it  sometimes  happens  when  an 
indictment  has  been  framed  upon  the  presentment  and  is  sent 
to  the  grand  jury  that  witnesses  are  sent  before  them  in  sup- 
port of  its  averments.87 

Where  the  indictment  is  not  based  upon  the  former  present- 
ment of  a  grand  jury,  it  is  necessary  that  witnesses  should  tes- 
tify in  support  thereof;  if  the  indictment  be  found  without 
hearing  evidence  it  will  be  quashed.38 

In  Georgia  it  has  been  held  that  an  indictment  founded  on  a 
presentment  of  the  grand  jury  need  not  again  be  sent  before 
them  for  their  action  upon  it.39 

If  an  indictment  has  been  quashed  or  nolle  pressed,  a  new  in- 
dictment for  the  same  offence  may  be  found  by  the  same  grand 
jury  which  returned  the  former  one  without  hearing  evidence 
in  support  of  the  second  bill.40 

In  order  to  procure  the  attendance  of  witnesses  to  testify 
in  support  of  any  bill  which  may  be  sent  before  the  grand 
jury,  a  subpoena  is  issued  by  the  district  attorney  and  served 
upon  such  persons  as  are  not  bound  by  recognizance  to  ap- 
pear.41 Those  who  are  so  bound  to  appear  and  testify  are  re- 

36  See  State  v.  Love,  4  Humph.   (Tenn.)  255;  State  v.  Cain,  i  Hawks 
(N.  C.)  352;  State  v.  Richard,  50  La.  Ann.  210. 

37  In  Com.  v.  Hayden,  163  Mass.  453,  it  was  held  that  an  indictment 
is  not  void  because  it  was  found  by  the  grand  jury  after  hearing  testimony 
by  one  of  the  grand  jurors,  since  the  grand  jury  may  properly  act  upon 
the  personal  knowledge  of  any  of  its  members.    In  North  Carolina,  where 
a  bill  is  found  upon  the  evidence  of  a  grand  juror,  he  must  be  regularly 
sworn  as  a  witness  and  be  noted  as  such:     State  v.  Cain,  I  Hawks  352. 
And  see  In  re  Gardiner,  64  N.  Y.  Sup.  760. 

38  State  v.  Grady,  84  Mo.  220.     And  see  State  v.  Cain,  i  Hawks.  (N.  C.) 

352. 

39  Nunn  v .  State,  I  Kelly  243. 

40  Com.  v.  Woods,  10  Gray  (Mass.)  477;  State  v.  Peterson,  61  Minn. 
73;  Whiting  v.  State,  48  Ohio  St.  220.    CONTRA  State  v.  Ivey,  100  N.  C. 
539.     See  Mclntire  v.  Com.,  4  S.  W.  I. 

41  At  common  law  the  committing  magistrate  before  whom  the  case 


HOW  THE  GRAND  JURY  TRANSACTS  BUSINESS.  133 

quired  to  be  produced  by  their  bondsmen  upon  whom  notice  is 
duly  served.  If  the  witness  cannot  be  produced  the  bond  will 
be  forfeited  and  a  bail  piece  issued  to  bring  the  witness  into 
court.  If  the  witness  is  not  bound  by  recognizance  and  fails 
to  appear  after  being  subpoenaed,  an  attachment  may  issue  to 
compel  his  attendance  upon  motion  of  the  district  attorney. 
If  it  is  necessary  that  books  or  papers  be  produced  in  evidence 
before  the  grand  jury,  a  subpoena  duces  tecum  may  issue  but 
it  should  particularly  describe  the  books  and  papers  wanted,42 
and  if  there  is  any  question  as  to  whether  or  not  the  books  or 
papers  so  produced  are  relevant  or  material,  they  may  be  sub- 
mitted to  the  inspection  of  the  court.43 

A  witness  before  the  grand  jury  who  refuses  to  testify  upon 
the  ground  that  his  evidence  may  tend  to  convict  him  of  a 
crime,  is  not  guilty  of  contempt44  but  if  the  question  pro- 
pounded to  the  witness  does  not  disclose  upon  its  face  that  it 
will  have  such  tendency  and  the  witness  fails  to  clearly  show 
to  the  court  how  it  will  have  such  effect,  he  may  be  punished 
for  a  contempt  if  he  refuses  to  answer  after  being  directed  to 
do  so  by  the  court.46 

While  a  witness  cannot  be  compelled  to  testify  as  to  matters 
which  would  tend  to  incriminate  him,  there  is  no  duty  imposed 
upon  the  grand  jury  to  inform  a  witness,  who  is  prepared  to  so 
testify,  of  his  constitutional  privilege.46  This  ruling  is  based 
upon  the  theory  that  every  person  is  bound  to  know  the  law 
and  any  failure  through  ignorance  or  otherwise  to  claim  the 
constitutional  privilege  will  be  deemed  a  waiver  of  it. 

A  witness  duly  summoned  before  the  grand  jury  cannot  re- 
fuse to  be  sworn  or  refuse  to  testify  without  sufficient  excuse. 
The  grand  jury  may  ask  the  advice  and  assistance  of  the  court 

was  heard,  in  default  of  bail,  can  commit  the  witnesses  to  await  the  next 
term  of  court:  2  Hale,  PI.  C.  52,  282;  Bennet  v.  Watson,  3  M.  &  S.  i. 

42  U.  S.  v.  Hunter,  15  Fed.  Rep.  712. 

43  Id.  In  re  Archer,  96  N.  W.  442. 

44  In  re  Morse,  87  N.  Y.  Sup.  721 ;  See  People  v.  Kelly,  12  Abb.  Pr. 
Rep.   (N.  Y.)   150. 

45  In  re  Rogers,  129  Calif.  468.    And  see  Wheatley  v.  State,  114  Ga. 

175- 

46  State  v.  Comer,  157  Ind.  6u. 


134  THE    GRAND    JURY. 

in  such  case  and  if  the  witness  still  prove  recalcitrant  he  may 
be  punished  for  contempt.47 

The  bills  are  sent  or  brought  into  the  grand  jury  room  by 
the  district  attorney  and  delivered  to  the  foreman.  The  in- 
dictment ought  to  be  signed  by  the  district  attorney48  before 
being  submitted  to  the  grand  jury,49  but  should  he  fail  to  do 
so  the  court  will  not  quash  upon  that  ground  after  the  grand 
jury  find  a  true  bill,  but  will  permit  bim  to  affix  his  signa- 
ture to  the  bill  in  court,  and  the  motion  to  quash  will  then  be 
overruled.60  The  district  attorney's  signature  constitutes  no 
part  of  the  indictment.  It  is  only  necessary  as  evidence  to  the 
court  that  he  is  officially  prosecuting  the  accused  in  accord- 
ance with  the  duty  imposed  upon  him  by  statute.51  In  the 
Federal  courts  the  signature  of  the  district  attorney  may  be 
affixed  by  one  of  his  assistants  acting  under  a  general  authority 
conferred  upon  him  by  the  district  attorney.52 

An  indictment  signed  by  a  person  designating  himself  as 
"solicitor  general"  when  there  was  no  such  state  officer  was 
held  to  be  invalid.53 


47  Heard  v.  Pierce,  8  Cush.  (Mass.)  338;  In  re  Harris,  4  Utah  5. 

48  Penna.  Statute,  May  3,  1850,  P.  L.  654. 

49  Fout  v.  State,  3  Hayw.  (Tenn.)  98;  Kite  v.  State,  9  Yerg.  (Tenn.) 
198;  Teas  v.  State,  7  Humph.  (Tenn.)  174;  Jackson  v.  State,  4  Kan.  150. 
CONTRA  Ward  v.  State,  22  Ala.   16;  Harrall-  v.  State,  26  Ala.  53;  Mc- 
Gregg  v.  State,  4  Blackf.  (Ind.)  101 ;  Thomas  v.  State,  6  Mo.  457;  Keith- 
ler  v.  State,  10  Smedes  &  M.  (Miss.)  192;  Anderson  v.  State,  5  Ark  444; 
State  v.  Vincent,  i  Car.  Law  R.  493. 

50  Com.  v.  Lenox,  3  Brews.  (Pa.)  249;  And  see  Com.  v.  Brown,  23  Pa. 
Superior  Ct.  470.    That  the  prosecuting  officer's  signature  is  not  essential 
to  the  validity  of  an  indictment.     See  Joyner  v.  State,  78  Ala.  448;  Wat- 
kins  v .  State,  37  Ark  370 ;  People  v.  Butler,  i  Idaho  231 ;  State  v.  Wil- 
moth,  63  Iowa  380 ;  State  v.  Williams,  107  La.  789 ;  Com.  v.  Stone,  105 
Mass.  469;  State  v.  Reed,  67  Me.  127;  State  v.  Murphy,  47  Mo.  274;  State  v. 
Vincent,  I  Car.  Law  R.  493 ;  Brown  v.  Com.  86  Va.  466.    CONTRA  Heacock 
v.   State,   42   Ind.   393;    State  v.   Bruce,   77   Mo.    193;   Fout  v.   State,   3 
Hayw.  (Tenn.)  98;  State  v.  Lockett,  3  Heisk  (Tenn.)  274. 

51  U.  S.  v.  McAvoy,  26  Fed.  Cas.  1044. 

52  U.  S.  v.  Nagle,  27  Fed.  Cas.  68 ;  State  v.  Coleman,  8  S.  C.  237.    And 
see  Com.  v.  Brown,  23  Pa.  Superior  Ct.  470;  Reynolds  v.  State,  n  Tex. 
120;  State  v.  Gonzales,  26  Tex.  197. 

53  Teas  v.  State,  7  Humph.   (Tenn.)   174.    And  see  State  v.  Salge,  2 
Nev.  321. 


HOW  THE  GRAND  JURY  TRANSACTS  BUSINESS.  135 

Upon  the  back  of  the  bill,  the  names  of  the  witnesses  should 
be  endorsed  by  the  district  attorney,54  and  in  Pennsylvania85 
it  is  provided  by  statute  that  "no  person  shall  be  required  to 
answer  to  any  indictment  for  any  offence  whatever,  unless  the 
prosecutor's  name,  if  any  there  be,  is  endorsed  thereon."58 
Where  no  prosecutor  is  proved  to  exist,  then  the  defendant 
must  plead  without  the  name  of  a  prosecutor  being  endorsed 
on  the  indictment.57 

In  Mississippi,58  Ohio,59  Tennessee80  and  Virginia^81  it  is 
also  necessary  that  the  name  of  the  presecutor  be  endorsed  on 
the  bill.  In  Arkansas,82  Florida,88  Kentucky84  and  Mis- 

54  Harriman  v.  State,  2  Greene  (Iowa)  270;  Andrews  v.  People,  117  III 
195 ;  Hartley  v.  People,  156  111.  234.    It  has  been  held  that  if  this  be  omitted 
it  will  not  be  fatal  to  the  indictment:    U.  S.  v.  Shepard,  27  Fed.  Cas. 
1056;  State  v.  Scott,  25  Ark.  107;  People  v.  Naughton,  38  How.  Pr.  (N. 
Y.)  430. 

55  Act  March  31,  1860,  Sec.  27,  P.  L.  427.    Memorial  of  Citizens  Asso- 
ciation, 8  Phila.   (Pa.)  478. 

56  U.  S.  v.  Mundell,  27  Fed.  Cas.  23;  U.  S.  v.  Helriggle,  26  Fed  Cas. 
258;  U.  S.  v.  Shackelford,  27  Fed.  Cas.  1037;  U.  S.  v.  Hbllinsberry,  26 
Fed.  Cas.  345.    The  omission  of  the  name  of  the  prosecutor  is  not  good 
ground  for  a  motion  in  arrest  of  judgment:    U.  S.  v.  Jamesson,  26  Fed. 
Cas.  585 ;  U.  S.  v.  Lloyd,  26  Fed.  Cas.  986 ;  nor  for  general  demurrer  to  the 
indictment ;  U.  S.  v.  Sandford,  27  Fed.  Cas.  952. 

57  U.  S.  v.  Dulary,  25  Fed.  Cas.  922;  U.  S.  v.  Lloyd,  26  Fed.  Cas.  986; 
Tenorio  v.  Territory,  i  N.  M.  279;  King  v.  Lukens,  I  Dall.  (Pa.)  5.    And 
see  Wortham  v.  Com.,  5  Randolph  (Va.)  669. 

58  Peter  v.  State,  3  How.  433;  Cody  v.  State,  Id.  27;  Moore  v.  State, 
13  Smedes  &  M.  259 ;  Kirk  v.  State,  Id.  406. 

59  Statutes,  Sec.  7207. 

60  Code  (1898),  Sec.  7058.    If  omitted  the  objection  may  be  raised  at  any 
stage  of  the  proceedings :    Medaris  v.  State,  10  Yerg.  239.      See,  however, 
Rodes  v.  State,  10  Lea.  414,  where  the  court  holds  that  the  policy  of  the  law 
has  changed  and  rules  to  the  contrary.    If  the  bill  is  founded  on  a  present- 
ment, the  prosecutor's  name  may  be  omitted:  State  v.  McCann,  i  Meigs  91. 
A  married  woman  is  incompetent  as  a  prosecutrix:  Moyers  v.  State,  1 1 
Humph.  40;  Wattingham  v.  State,  5  Sneed,  64;  and  a  husband  is  incompe- 
tent as  a  prosecutor  against  his  wife :    State  v.  Tankersley,  6  Lea.  582. 

61  Code,  Sec.  3991.    Haught  v.  Com.  2  Va.  Cas.  3;  Com.  v.  Dove,  Id. 
29.    But  see  Thompson  v.  Com.,  88  Va.  45. 

62  State  v .  Brown,  10  Ark.  104 ;  State  v.  Stanford,  20  Ark.  145.    And  see 
State  v.  Harrison,  19  Ark.  565 ;  State  r.  Scott,  25  Ark.  107 ;  State  r.  Den- 


136  THE   GRAND   JURY. 

souri65  the  prosecutor's  name  must  be  endorsed  in  cases  of  tres- 
pass not  amounting  to  felony. 

In  Alabama,66  the  statute  requiring  the  name  of  the  prosecu- 
tor to  be  endorsed  on  the  indictment  has  been  held  to  be  merely 
directory  and  the  omission  of  such  endorsement  will  not  in- 
validate the  indictment. 

In  North  Carolina67  the  prosecuting  officer  may,  in  his  dis- 
cretion, endorse  the  governor  of  the  state  as  prosecutor  on  in- 
dictments whenever  public  interest  may  require  it ;  and  in  Mis- 
sissippi68 it  has  been  held  that  the  foreman  of  the  grand  jury 
may  be  endorsed  as  the  prosecutor. 

In  Massachusetts69  the  practice  is  in  vogue  of  omitting  the 
names  of  witnesses  from  the  indictment,  the  grand  jury  mak- 
ing a  general  return  of  the  names  of  the  witnesses  examined 
by  them  but  without  in  any  manner  indicating  the  bills  upon 
which  they  testified.  In  the  case  of  Commonwealth  vs. 
Knapp,70  counsel  for  the  defendant  applied  to  the  court  for  a 
list  of  the  witnesses  appearing  before  the  grand  jury.  The 
court  granted  the  application,  Judge  Wilde,  before  whom  the 
application  was  made  saying  that  such  a  request  had  never 
been  refused. 

ton,  14  Ark.  343.    The  name  of  a  prosecutor  need  not  be  endorsed  on  an 
indictment  for  passing  counterfeit  coin :     Gabe  v.  State,  I  Eng.  540. 

63  Towle  v.  State,  3  Fla.  202. 

64  Bartlett  v.   Humphreys,   Hardin,   513;   Com.  v.   Gore,   3   Dana  474. 
And  see  Allen  v.  Com.,  2  Bibb  210. 

65  Rev.  Code  1899,  Sec.  2515.    For  cases  within  the  statute  see  State  v. 
McCourtney,  6  Mo.  649;  State  v.  Hurt,  7  Mo.  321;  McWaters  v.  State,  10 
Mo.  167;  State  v.  Joiner,  19  Mo.  224.     Cases  not  within  the  statute  see  State 
v.  Rogers,  37  Mo.  367;  State  v.  Goss,  74  Mo.  592;  Lucy  v.  State,  8  Mo.  134; 
State  v.  Moles,  9  Mo.  694;  State  v.  Roberts,  11  Mo.  510;  State  v.  Al- 
len, 22  Mo.  318;  State  v.  Sears,  86  Mo.  169.    The  endorsement  may  be 
written  on  the  face  of  the  bill :     Williams  v.  State,  9  Mo.  270. 

66  State  v.  Hughes,  i  Ala.  655 ;  Molett  v.  State,  33  Ala.  408 ;  Hubbard  v. 
State,  72  Ala.  164. 

67  State  v.  English,  I  Murphy,  435. 

68  King  v.  State,  5  How.  730. 

69  i  Whart.  Cr.  Law,  Sec.  479.  (7th  ed.) 

70  9  Pick.   (Mass.)   498. 


HOW  THE  GRAND  JURY  TRANSACTS  BUSINESS.  1 37 

In  Mississippi,71  the  names  of  the  witnesses  need  not  be  re- 
turned with  the  indictment. 

Before  the  witnesses  summoned  to  attend  the  grand  jury 
are  permitted  to  testify,  they  must  be  sworn.  At  common  law 
the  witnesses  were  all  sworn  in  open  court  at  the  one  time,72 
and  this  practice  is  followed  in  the  Federal  courts  at  the  present 
time,  the  witnesses  there  being  sworn  by  the  clerk.73  But  this 
method  of  procedure  is  open  to  the  objection  that  the  grand 
jury  have  no  accurate  knowledge  as  to  whether  or  not  a  par- 
ticular witness  has  been  sworn.74  In  some  jurisdictions  it  is 
customary  to  summon  a  justice  of  the  peace  as  a  grand  juror, 
and  the  witnesses  are  sworn  in  the  grand  jury  room  by  him.75 
But  in  Pennsylvania76  it  is  provided  by  the  act  of  March  31. 
1860:— 

"The  foreman  of  any  grand  jury,  or  any  member  thereof, 
is  hereby  authorized  and  empowered  to  administer  the  requi- 
site oaths  or  affirmations  to  any  witnesses  whose  names  may 
be  marked  by  the  district  attorney  on  the  bill  of  indictment." 

The  inconvenience  resulting  from  swearing  witnesses  in 
open  court  who,  subsequently,  were  to  appear  before  the  grand 
jury,  and  the  ease  with  which  an  unsworn  witness  might  pre- 
sent himself  and  testify  have  caused  similar  statutes  to  be 
adopted  in  almost  every  state. 

The  power  of  a  grand  juror  to  administer  the  oath77  is  lim- 

71  King  v.  State,  5  How.  730. 

72  In  North  Carolina  this  method  of  swearing  witnessses  has  not  been 
abrogated  by  Act  1879,  c.  12:    State  v.  Allen,  83  N.  C.  680.    If  the  witness 
is  not  sworn  in  open  court  the  indictment  will  be  quashed :     State  v .  Kil- 
crease,  6  S.  C.  444;  Oilman  v.  State,  20  Tenn.  59. 

73  And  see  State  v.  White,  88  N.  C.  698.    It  is  not  necessary  that  the 
judge  should  be  upon  the  bench  if  his  absence  be  but  temporary:    Jetton 
v.  State,  19  Tenn.  192. 

74  See  Duke  v.   Sti.it,  20  Ohio  St.  225,  where  the  statute  provided 
against  this  contingency. 

75  State  v.  Fassett,  16  Conn.  457.    And  see  I  Whart.  Cr.  Law,  Sec.  488. 
(7th  ed.) 

76  Sec.  10,  P.  L.  433. 

77  The  witnesses  may  be  sworn  by  the  foreman  of  the  grand  jury:  Bird 
v.  State,  50  Ga.  585 ;  Siate  v .  White,  88  N.  C.  698.    In  Tennessee  he  can- 
not swear  them  in  case  of  a  felony:     Ayrs  v.  State,  5  Cold.  26. 


138  THE    GRAND    JURY. 

ited  to  those  cases  where  the  name  may  be  marked  on  the  bill 
of  indictment.78  The  presence  of  the  district  attorney  in  the 
grand  jury  room  during  the  examination  of  witnesses  should, 
however,  make  this  clause  free  from  controversy,  for  if  the 
name  of  the  witness  be  not  endorsed  on  the  bill  when  he 
comes  to  be  sworn,  it  can  then  and  there  be  done  by  that  officer. 
The  question,  however,  did  arise  in  the  case  of  Jillard  v. 
Commonwealth79  where  the  defendant  sought  to  take  advan- 
tage of  the  swearing  and  examining  of  certain  witnesses  whose 
names  were  not  marked  upon  the  indictment,  by  a  plea  in  bar, 
but  it  was  held  that  at  most  it  was  only  ground  for  a  motion 
to  quash.80  It  need  not  appear  by  the  indictment  or  otherwise 
that  the  witnesses  who  testified  before  the  grand  jury  were 
sworn  or  affirmed.81  The  presumption  is  that  the  grand  jury 
complied  with  all  the  requirements  of  the  law  before  finding  a 
true  bill. 

Where  the  grand  jury  find  a  true  bill  and  one  or  more  of  the 
witnesses  upon  whose  testimony  the  bill  was  found  were  not 
sworn,  if  objection  be  taken  before  the  defendant  pleads,  the 
indictment  will  be  quashed.82  If  a  motion  to  quash  be  not 
made  and  the  defendant  pleads,  the  objection  has  been  held  to 
have  been  waived  and  cannot  be  raised  by  a  motion  in  arrest 

78  Com.  v.  Price,  3  Pa.  C  C.  Rep.  175;  Jillard  v.  Com.,  26  Pa.  169;  Com. 
v.  Wilson,  9  Pa.  C.  C.  Rep.  24. 

79  26  Pa.  169;  s.  c.  13  L.  I.  (Pa.)  132.    This  case  arose  under  the  Act 
of  April  5,  1826,  which  is  similar  in  its  provisions  to  the  Act  of  March 
31,  1860,  Sec.  10,  P.  L.  433. 

80  Com.  v.  Wilson,  9  Pa.  C.  C.  Rep.  24;  Com.  v.  Schall,  9  Lane.  Law 
Rev.  (Pa.)  332;  Com.  v.  Frescoln,  n  Id.  161 ;  State  v.  Roberts,  2  Dev.  & 
Bat.  (N.  C.)  540;  King  v.  State,  5  How.  (Miss.)  730;  Oilman  v.  State,  I 
Humph.   (Tenn.)  59. 

81  Com.  v.  Salter,  2  Pears.  (Pa.)  461;  King  v.  State,  5  How.  (Miss.) 
730;  Gilman  v.  State,  I  Humph.   (Tenn.)  59.    They  will  be  presumed  to 
have  been  sworn :     Com.  v.  Rovnianek,  12  Pa.  Superior  Ct.  86. 

82  U.  S.  v.  Coolidge,  25  Fed.  Cas.  622;  Joyner  v.  State,  78  Ala.  448; 
Ashburn  v.  State,  15  Ga.  246;  In  re  Lester,  77  Ga.  143.    CONTRA  State  v. 
Easton,  113  Iowa  516,  upon  the  ground  that  the  failure  to  administer  the 
oath  was  not  one  of  the  grounds  of  objection  designed  by  the  statute. 


HOW  THE  GRAND  JURY  TRANSACTS  BUSINESS.  139 

of  judgment.83  This  may  now  be  considered  as  the  English 
rule  although  the  decisions  have  not  been  uniform.84  In  Rex 
v.  Dickinson,88  where  none  of  the  witnesses  before  the  grand 
jury  had  been  sworn  at  all,  while  a  motion  in  arrest  of  judg- 
ment was  overruled,  the  twelve  judges  unanimously  made  ap- 
plication for  a  pardon. 

While  it  is  usual  for  the  district  attorney  to  conduct  the 
examination,  any  of  the  grand  jurors  may  fully  interrogate 
a  witness.88  But  it  is  not  lawful  for  one  witness  to  be  interro- 
gated by  another  witness  who  may  happen  to  be  in  the  room, 
nor  will  more  than  one  witness  at  a  time  be  permitted  to  be  in 
the  grand  jury  room  and  an  indictment  will  be  quashed  if  it  be 
shown  that  this  was  permitted.87 

An  indictment  will  likewise  be  quashed  where  a  person, 
other  than  a  grand  juror  is  present  in  the  grand  jury  room 
during  their  deliberations88  and  participates  in  the  voting.89 
But  where  a  stenographer  in  the  employ  of  the  district  attorney 
was  present  and  took  notes  of  the  testimony  of  a  witness,  it 
was  held  that  such  stenographer  was  an  assistant  to  the  district 
attorney  and  the  court  refused  to  quash  the  indictment.80 

83  Rex  v.  Dickinson,  Russ.  &  Ry.  Crown  Cases  401 ;  Reg.  v.  Russell,  I 
C  &  M.  247;  i  Whart.  Cr.  Law,  Sec.  489  (7th  ed) 

84  Id. 

85  Russ.  &  Ry.  Crown  Cas.  401. 

86  An  indictment  will  not  be  set  aside  because  the  clerk  of  the  t,Tand 
jury  was  a  practicing  attorney  and  asked  the  witness  some  questions  at 
the  request  of  the  foreman :    State  v.  Miller,  95  Iowa  368. 

87  U.  S.  v.  Edgerton,  80  Fed.  Rep.  374;  Com.  v.  Dorwart,  7  Lane.  Bar 
(Pa.)   121 ;  And  see  State  v.  Fertig,  98  Iowa,  139.    CONTRA  Bennett  v. 
State,  62  Ark.  516;  Mason  v.  State,  81  S.  W.  718;  State  v.  Wood,  84  N.  W. 

503- 

88  State  v.  Watson,  34  La.  Ann.  669 ;  State  v.  Clough,  49  Me.  573 ;  Wil- 
son v.  State,  70  Miss.  595;  People  v.  Metropolitan  Traction  Co.,  50  N.  Y. 
Sup.  1117;  Rothschild  v.  State,  7  Tex.  App.  519;  Doss  v.  State,  28  Id. 
506.    And  see  Sims  v.  State,  45  S.  W.  705.    A  judgment  will  not  be  re- 
versed upon  the  ground  that  a  stranger  was  in  the  room  during  the  delib- 
erations of  the  grand  jury  where  no  objection  was  made  to  such  irregu- 
larity before  trial:    State  v.  Justus,  II  Ore.  178. 

89  State  v.  Fertig,  98  Iowa  139 ;  Territory  v.  Staples,  26  Pac.  166 ;  State 
v.  Tilly,  8  Baxt.  (Tenn.)  381. 

90  U.  S.  v.  Simmons,  46  Fed.  Rep.  65;  State  v.  Brewster,  42  L.  R.  A. 


I4O  THE    GRAND    JURY. 

Neither  the  defendant  nor  any  of  his  witnesses  will  be  per- 
mitted to  appear  before  the  grand  jury.01  Upon  this  point 
Chief  Justice  McKean  thus  expresses  himself  :92 

"Were  the  proposed  examination  of  witnesses  on  the  part  of 
the  defendant  to  be  allowed,  the  long  established  rules  of  law 
and  justice  would  be  at  an  end.  It  is  a  matter  well  known  and 
well  understood,  that  by  the  laws  of  our  country,  every  ques- 
tion which  affects  a  man's  life,  reputation  or  property,  must  be 
tried  by  twelve  of  his  peers ;  and  that  their  unanimous  verdict 
is  alone,  competent  to  determine  the  fact  in  issue.  If  then  you 
undertake  to  inquire,  not  only  upon  what  foundation  the 
charge  is  made,  but,  likewise,  upon  what  foundation  it  is  de- 
nied, you  will  in  effect  usurp  the  jurisdiction  of  the  petty  jury, 
you  will  supersede  the  legal  authority  of  the  court,  in  judging 
of  the  competency  and  admissibility  of  witnesses,  and  having 
thus  undertaken  to  try  the  question,  that  question  may  be  de- 
termined by  a  bare  majority,  or  by  a  much  greater  number  of 
your  body,  than  the  twelve  peers  prescribed  by  the  laws  of  the 
land.  This  point  has,  I  believe,  excited  some  doubts  upon 
former  occasions;  but  those  doubts  have  never  arisen  in  the 
mind  of  any  lawyer,  and  they  may  easily  be  removed  by  a 
proper  consideration  of  the  subject.  For  the  bills,  or  present- 
ments, found  by  a  grand  jury,  amount  to  nothing  more  than 
an  official  accusation,  in  order  to  put  the  party  accused  upon  his 
trial:  till  the  bill  is  returned,  there  is  therefore,  no  charge 
from  which  he  can  be  required  to  exculpate  himself;  and  we 
know  that  many  persons  against  whom  bills  were  returned, 
have  been  afterwards  acquitted  by  a  verdict  of  their  coun- 
try." 

ye' 

444;  State  "v.  Bates,  148  Ind.  610;  Thayer  v.  State,  138  Ala.  39;  And  see 
Courtney  v.  State,  5  Ind.  App.  356.  CONTRA  State  v.  Bowman,  90  Me.  363. 
And  see  as  to  the  presence  of  other  officers  in  the  grand  jury  room:  State 
v.  Kimball,  29  Iowa  267;  Richardson  v.  Com.,  76  Va.  1007;  State  v.  District 
Court,  55  Pac.  916;  Cross  v.  State,  78  Ala.  430;  Bennett  v.  State,  62  Ark. 
516;  Raymond  v.  People,  30  Pac.  504;  State  v.  Bacon,  77  Miss.  366.  See 
as  to  presence  of  interpreter:  People  v.  Ramirez,  56  Calif.  533;  People  v. 
Lem  Deo,  132  Calif.  199. 

91  Supra.  103.     CONTRA  In  re  Morse,  87  N.  Y.  Sup.  721. 

92  Res.  v.  Shaffer,  i  Dall.   (Pa.)  236. 


HOW  THE  GRAND  JURY  TRANSACTS  BUSINESS.  14! 

The  same  question  was  considered  by  Judge  Addison93 
whose  opinion  is  well  expressed  in  the  following  language: 
"But  if  witnesses,  brought  forward  by  the  accused  person, 
were  to  be  heard  in  his  defence  before  the  grand  jury,  and  they 
should  find  the  charge  true,  this  would  approach  so  near  to 
a  conviction,  that  the  traversing  of  the  indictment  afterwards, 
and  the  trial  by  the  traverse  jury,  would  appear  nugatory,  and 
might  be  abolished.  The  finding  of  the  bill  would  raise  such 
an  opinion  and  presumption  of  the  guilt  of  the  accused  per- 
son, as  must  be  a  bias  in  the  minds  of  all  men ;  and  the  prisoner 
could  not  come  before  the  traverse  jury  with  a  hope  of  that  im- 
partiality in  his  judges,  which  the  constitution  of  a  jury  trial 
supposes  him  to  expect." 

The  duty  of  the  grand  jury  is  to  determine  whether  or  not 
the  evidence  presented  by  the  state  raises  a  prima  facie  pre- 
sumption of  the  guilt  of  the  defendant,  or,  in  other  words,  is  the 
evidence  for  the  prosecution  sufficient  to  sustain  a  conviction. 
If  it  is,  then  a  true  bill  should  be  returned;  if  not,  the  bill 
should  be  ignored.  With  this  intermediate  stage  of  the  prose- 
cution a  defendant  has  no  concern  except  that  it  shall  be  ac- 
cording to  law.  He  has  secured  to  him  the  constitutional  right 
of  trial  by  jury  and  not  trial  by  grand  jury,  and  until  he  shall 
have  been  indicted  he  is  not  called  upon  to  make  defence. 
Until  he  is  thus  called  upon  to  face  a  petit  jury  he  is  nehAer  en- 
titled nor  will  he  be  permitted  to  present  any  evidence  in  his 
own  behalf. 

In  the  Federal  courts  it  was  formerly  held  that  the  defend- 
ant's witnesses  might  go  before  the  grand  jury  with  the  con- 
sent of  the  district  attorney  ;94  but  it  is  now  held  that  the  dis- 
trict attorney  cannot  give  permission  to  the  defendant  to  send 
witnesses  in  his  own  behalf  before  the  grand  jury.95  Only  in 
the  event  that  the  testimony  of  any  of  defendant's  witnesses  is 
essential  to  make  out  a  case  for  the  government  will  this  rule 
be  departed  from. 

In  the  hearing  of  the  testimony  of  the  witnesses  appearing 

93  Addison,  App.  41. 

94  U.  S.  v.  White,  28  Fed.  Cas.  588. 

95  Supra,  103. 


142  THE   GRAND   JURY. 

before  them,  the  grand  jury  should  be  governed  by  the  ordi- 
nary rules  of  evidence  and  no  indictment  should  be  found  upon 
evidence,  which,  before  the  petit  jury  and  uncontradicted, 
would  not  support  a  conviction.96  It  is  the  duty  of  the  district 
attorney  to  permit  the  grand  jury  to  receive  DO  incompetent 
evidence,97  but  the  restriction  which  prohibits  him  from  taking 
any  part  in  their  proceedings  after  adducing  all  the  evidence 
for  the  government,  would  likewise  prevent  him  from  express- 
ing his  opinion  as  to  the  insufficiency  of  the  evidence  to  war- 
rant a  conviction.  While  it  is  the  duty  of  the  district  attorney 
not  to  proceed  further  when  he  knows  the  evidence  insufficient 
to  convict,  it  is  at  the  same  time  the  exclusive  province  of 
the  grand  jury  to  determine  the  sufficiency  of  the  evidence  to 
justify  the  indictment.  Should  an  indictment  be  found  upon 
insufficient  evidence,  it  is  within  the  province  of  the  district 
attorney  to  enter  a  nolle  pros  which  he  may  do  with  leave  of 
court.  In  this  manner  he  would  leave  the  grand  jurors  to  ar- 
rive at  their  own  conclusions  without  interference  from  him, 
while  at  the  same  time  he  could  observe  the  duty  imposed  upon 
him  by  his  oath,  and  relieve  the  defendant  from  an  unsupported 
accusation.  But  while  he  expresses  no  opinion  as  to  the  suffi- 
ciency or  insufficiency  of  the  evidence  to  justify  the  finding 
of  a  true  bill,  he  should  advise  them  as  to  the  legal  require- 
ment. 

The  grand  jury  should,  therefore,  receive  only  the  best  evi- 
dence which  can  be  procured,  being  admissable  evidence  before 
the  petit  jury.98  They  should  not  receive  hearsay  or  irrelevant 

96  Supra,  105,  141 ;  People  v .  Stern,  68  N.  Y.  Sup.  732 ;  People  v.  Har- 
mon, 69  N.  Y.  Sup.  511. 

97  2  Hawk.  PI.  C.  c.  25,  s.  138-139.  Davi^'  Precedents  of  Indictments,  25 ; 
I  Whart.  Cr.  Law,  Sec.  493  (7th  ed.)  ;  Denby's  Case,  i  Leach  C.  C.  514. 

98  i  Chitty  Cr.  Law,  319;  i  Whart.  Cr.  Law,  Sec.  493  (7th  ed.)  ;  U.  S.  v. 
Reed,  27  Fed.  Cas.  727 ;  U.  S.  v.  Kilpatrick,  16  Fed.  Rep.  765 ;  Sparrenberger 
v.  State,  53  Ala.  481 ;  Washington  v.  State,  63  Ala.  189;  Bryant  v.  State,  79 
Ala.  282 ;  People  v.  Sellick,  4  N.  Y.  Cr.  Rep.  329 ;  People  v.  Strong,  i  Abb. 
Prac.  Rep.  (N.  S.)  244.    The  court  will  not  pass  upon  the  sufficiency  of  the 
evidence  heard  by  the  grand  jury:     Stewart  v.  State,  24  Ind.  142;  Com.  v. 
Minor,  89  Ky.  555;  State  v.  Lewis,  38  La.  Ann.  680.    And  see  U.  S.  v. 
Cobban,    127   Fed.   Rep.   713;   State  r.   Fowler,  52   Iowa   103;   People  v. 


HOW  THE  GRAND  JURY  TRANSACTS  BUSINESS.  143 

evidence,  but  if  they  do  receive  it,  this  will  not  of  course  be 
sufficient  ground  for  quashing  the  indictment,"  and  cannot  be 
availed  of  on  motion  in  arrest  of  judgment.100 

In  North  Carolina101  it  was  held  that  an  indictment  would 
be  quashed  where  it  was  found  upon  the  testimony  of  interested 
or  incompetent  witnesses. 

Where  a  paper  is  sent  before  the  grand  jury  it  should  be 
relevant  to  the  matter  then  under  consideration,  although  its 
materiality  may  not  appear.102  When  a  subpoena  duces  tecum 
has  issued,  the  court  will  decide  whether  the  books,  papers 
and  documents  ordered  to  be  produced  are  relevant  and  ma- 
terial, and  whether  or  not  they  are  privileged  communica- 
tions.108 

Where  the  grand  jury  suspect  that  a  witness  has  been  tam- 
pered with  by  the  prisoner,  they  will  not  be  permitted  to  re- 
ceive in  evidence  his  written  examination  before  the  commit- 
ting magistrate  in  lieu  of  his  parol  testimony.104 

An  indictment  found  upon  the  evidence  of  a  person  who  is 
an  incompetent  witness  by  reason  of  his  conviction  of  an  in- 

Lauder,  82  Mich.  109;  State  v.  Logan,  i  Nev.  509;  Hope  v.  People,  83  N. 
Y.  418;  Morrison  v.  State,  41  Tex.  516;  Cotton  v.  State,  43  Tex.  169; 
Terry  v.  State,  15  Tex.  App.  66;  Carl  v.  State,  28  So.  505;  Hall  v.  State, 
32  So.  750;  Mclntire  v.  Com.,  4  S.  W.  I.  But  see  People  v.  Metropolitan 
Traction  Co.,  50  N.  Y.  Sup.  1117. 

99  U.  S.  v.  Jones,  69  Fed.  Rep.  973;  State  r.  Fasset,  16  Conn.  457;  Peo- 
ple v.  Lauder,  82  Mich.  109;  State  v.  Dayton,  23  N.  J.  Law  49;  People  v. 
Molineux,  58  N.  Y.  Sup.  155;  Wadley  v.  Com.  35  S.  E.  452;  Buchanan  v. 
State,  52  S.  W.  769;  Territory  v.  Pendry,  22  Pac.  760.    But  see  CONTRA 
State  v.  Robinson,  2  Lea  (Tenn.)   114;  People  v.  Metropolitan  Traction 
Co.,  50  N.  Y.  Sup.  1117. 

100  Com.  v.  Spattenhover,  8  Luz.  Leg.  Reg.  101.    In  this  case  the  de- 
fendant's wife  was  called  as  a  witness  against  her  husband  before  the 
grand  jury  which  found  the  indictment. 

101  State  v.  Fellows,  2  Hayw.  340. 

102  U.  S.  v.  Aaron  Burr,  25  Fed.  Cas.  68. 

103  U.  S.  v.  Hunter,  15  Fed.  Rep.  712;  Hartranft's  Appeal,  85  Pa.  433. 

104  Denby's  Case,  I  Leach  C.  C.  514.    In  California  the  depositions  of 
witnessses  taken  before  a  magistrate  upon  a  criminal  charge  may  be  used 
before  a  grand  jury:     People  v.  Stuart,  4  Calif.  218.    And  see  State  v. 
Marshall,  74  N.  W.  763 ;  Hope  v.  People,  83  N.  Y.  4ia 


144  THE    GRAND    JURY. 

famous  crime  will  be  quashed105  as  will  one  founded  upon  the 
testimony  of  a  witness  who  has  been  convicted  of  perjury.106 
But  where  an  indictment  was  found  upon  the  uncorroborated 
evidence  of  an  accomplice  the  court  refused  to  quash.107  The 
court  has  also  refused  to  quash  where  an  indictment  has  been 
found  after  the  defendant  voluntarily  testifies  before  the  grand 
jury.108 

In  England  an  indictment  for  treason  will  be  quashed  unless 
it  is  founded  on  the  evidence  of  two  witnesses  to  the  same  overt 
act  109  but  the  rule  is  otherwise  in  the  Federal  courts.110 

It  would  seem,  however,  where  the  grand  jury  find  an 
indictment  either  upon  the  evidence  of  a  single  witness  who  is 
incompetent,  or  after  hearing  the  evidence  of  more  than  one 
witness,  one  of  whom  is  incompetent,  that  it  should  be  quashed 
if  these  facts  be  made  to  appear.111  While  an  opposite  view 


105  2  Hawk.  PI.  C.  Ch.  25,  Sec.  145;  I  Whart.  Cr.  Law,  Sec.  493.  (7th 
ed.) 

106  The  Penna.  Act  of  May  23,  1887,  Sec.  2,  P.  L.  158,  provides  that  a 
person  convicted  of  perjury  shall  not  be  a  competent  witness  for  any  pur- 
pose except  in  cases  of  violence  done  or  attempted  to  be  done  to  his  per- 
son or  property. 

107  King  v.  Dodd.,  i  Leach  C.  C.  155. 

108  People  v.  King,  28  Calif.  265;   State  v.  Trauger,  77  N.  W.  336; 
People  v.  Willis,  52  N.  Y.  Sup.  808 ;  Lindsay  v.  State,  24  Ohio  Cir.  Ct.  Rep. 
I ;  State  v.  Comer,  157  Ind.  611 ;  People  v.  Lauder,  82  Mich.  109;  State  v. 
Hawks,  56  Minn.   129.    And  see   People  v.  Hayes,  59  N.   Y.   Sup.  761. 
CONTRA  People  v.  Singer,  18  Abb.  N.  C.  96;  State  v.  Froiseth,  16  Minn.  296. 

109  i  East's  PI.  C.  128.    In  i  Chitty  Cr.  Law  320,  it  is  said  that  it  will 
be  sufficient  if  there  is  one  witness  to  one  overt  act  and  another  witness 
to  another  overt  act. 

no  The  Constitution  of  the  United  States,  Art  III,  Sec.  3,  provides, 
"No  person  shall  be  convicted  of  treason  unless  on  the  testimony  of  two 
witnesses  to  the  same  overt  act."  .  .  At  common  law  one  witness  was 
sufficient  to  support  a  conviction  in  cases  of  treason :  I  East  PL  C.  128. 

in  People  v.  Price,  2  N.  Y.  Sup.  414;  People  v.  Briggs,  60  How.  Pr. 
(N.  Y.)  17;  State  v.  Lanier,  90  N.  C.  714.  This  common  law  principle  is 
recognized  in  New  York  by  the  provisions  of  Cr.  Code,  Sec.  256,  providing 
"the  grand  jury  can  receive  none  but  legal  evidence,"  and  in  People  v. 
Metropolitan  Traction  Co.,  50  N.  Y.  Sup.  1117,  the  indictment  was  dis- 
missed upon  the  ground  that  the  grand  jury  had  been  allowed  to  receive 
illegal  evidence. 


HOW  THE  GRAND  JURY  TRANSACTS  BUSINESS.  145 

has  been  taken  in  some  of  the  states,112  it  can  hardly  be  said 
that  their  position  is  well  founded  in  reason.  If  the  grand 
jury  should  not  be  permitted  to  receive  evidence  inadmissable 
before  a  petit  jury,  if  they  do  receive  it  the  indictment  should 
be  quashed  upon  the  same  theory  which  prompts  the  award 
of  a  new  trial  when  the  trial  judge  against  the  objection  of 
counsel  permits  an  incompetent  witness  to  testify.  If,  as  the 
courts  have  said,  it  is  impossible  to  say  what  effect  the  testi- 
mony of  the  incompetent  witness  may  have  had  toward  influ- 
encing the  verdict  of  the  petit  jury,113  which  hears  the  evidence 
in  the  presence  of  the  judge,  how  much  more  strongly  the  same 
reason  applies  where  an  incompetent  witness  testifies  before 
the  grand  jury  and  his  evidence  is  heard  in  secret. 

The  same  reason  which  has  moved  the  court  to  quash  an  in- 
dictment when  it  was  based  upon  the  testimony  of  a  single 
person  and  he  incompetent,114  should  also  apply  in  cases  where 
there  is  more  than  one  witness  some  of  whom  are  and  one  or 
more  of  whom  are  not  competent.  It  may  well  be  that  the  tes- 
timony of  the  incompetent  witness  formed  the  principal  evi- 
dence against  the  defendant,  or  it  may  have  been  the  necessary 
connecting  link  in  the  chain  of  circumstances,  without  which 
the  grand  jury  would  have  ignored  the  bill,  and  it  would  be 
manifestly  unjust  to  compel  a  defendant  to  answer  to  an  in- 
dictment found  in  such  a  manner.  That  the  tendency  of  the 
cases  in  general  may  be  said  to  accord  with  this  view  will  be 
seen  in  the  fact  that  although  other  witnesses  were  examined 
at  the  same  time,  an  indictment  was  quashed  where  the 
defendant  was  compelled  to  testify  against  himself,118  and 

112  Bloomer  v.  State,  3  Sneed  (Tenn.)  66;  State  v.  Tucker,  20  Iowa 
508;  Com.  v.  Minor,  89  Ky.  555.    And  see  i  Whart.  Cr.  Law,  Sec.  493  (7th 
ed.)  ;  U.  S.  v.  Brown,  24  Fed.  Cas.  1273;  U.  S.  v.  Smith,  27  Fed.  Cas.  1186. 

113  Grier  v.  Homestead  Borough,  6  Pa.  Superior  Ct.  542;  Rahlfing  v. 
Heidrick,  4  Phila.  (Pa.)  3;  Railway  Co.  v.  Johnson,  55  Kan.  344;  Mussey 
v.  Mussey,  68  Me.  346;  Hamblett  v.  Hamblett,  6  N.  H.  333;  Sherman  v. 
Railroad  Co.,  106  N.  Y.  542;  Penfield  v.  Carpenter,  13  Johns.  (N.  Y.)  350. 

114  State  v.  Fellows,  2  Hayw.  (N.  C.)  340;  and  see  Lennard  v.  State, 
30  S.  E.  780. 

115  U.  S.  v.  Edgerton,  80  Fed.  Rep.  374;  State  v.  Froiseth,  16  Minn. 
296;  State  v.  Gardner,  88  Minn.  130.     And  see  Counselman  v.  Hitchcock, 

10 


146  THE   GRAND    JURY. 

where  an  unsworn  witness  testified  before  the  grand  jury.116 
The  ground  upon  which  the  contrary  view  is  based  is  that 
the  court  will  not  inquire  whether  or  not  the  evidence  was  suf- 
ficient to  justify  the  finding.117  But  this  can  hardly  be  said 
to  be  either  an  accurate  or  an  adequate  reason.  If  the  wit- 
ness be  incompetent,  then  to  sustain  the  indictment  the  court 
must  assume  that  it  was  found  upon  the  evidence  of  the  com- 
petent witnesses  only  and  that  the  evidence  of  the  incompetent 
witness  was  disregarded ;  if  this  be  not  assumed,  then  we  have 
the  condition  of  an  indictment  being  sustained  although 
founded  wholly  or  in  part  on  incompetent  evidence.  While  in 
sustaining  the  indictment  all  intention  to  weigh  the  evidence 
is  disclaimed,  in  Assuming  the  sufficiency  of  the  evidence  the 
court  necessarily  weighs  it  in  favor  of  the  commonwealth. 
If  the  sufficiency  of  the  evidence  be  not  assumed,  then  the  court 
should  not  permit  the  indictment  to  stand.118 

After  the  grand  jury  have  had  all  the  evidence  in  the  par- 
ticular case  under  investigation  presented  to  them,  they  are 
then  prepared  to  consider  the  bill  and  endorse  thereon  their 
finding.  They  may  find  a  true  bill  as  soon  as  they  have  heard 
enough  evidence  to  convince  them  that  a  prima  facie  case  has 
been  made  out  but  they  must  not  ignore  a  bill  until  they  have 


142  U.  S.  547;  State  v.  Frizell,  in  N.  C.  722.  CONTRA  U.  S.  v.  Brown,  24 
Fed.  Cas.  1273.  In  State  v.  Krider,  78  N.  C.  481,  the  indictment  was 
quashed  where  the  grand  jury  examined  each  of  two  persons  against 
the  other  in  order  to  obtain  a  true  bill  against  both. 

116  U.  S.  v.  Coolidge,  25  Fed.  Cas.  622.    In  Com.  v.  Price,  3  Pa.  C.  C. 
Rep.  175,  where  a  witness  testified  before  the  grand  jury  without  being 
legally  sworn,  Judge  Sittser  quashed  the  indictment,  saying:    "We  can- 
not tell  whether  the  grand  jury  found  the  indictment  upon  the  testimony 
of  this  witness  alone  or  upon  that  of  others,  nor  can  we  inquire  into  that." 

117  Turk   v.   State,   7   Hammond    (Ohio)    part  2,   p.   240;    People   v. 
Hulbut,  4  Denio    (N.   Y.)    133;    State  v.   Logan,   i    Nev.   509;   State  v. 
Boyd,  2  Hill    (S.  C.)   288.    In  New  York  even  though  illegal  evidence 
was    introduced    before    the    grand    jury,    if    legal    evidence    was    also 
presented,   which   if   unexplained,   would   warrant   a   conviction,   the   in- 
dictment must  be  sustained:     People  v.  Winant,  53  N.  Y.  Sup.  695.     See 
people   v.   Metropolitan   Traction   Co.,   50   N.   Y.    Sup.    1117;    People   v. 
Mblineux,  58  N.  Y.  Sup.  155. 

118  See  remarks  of  Judge  Sittser  in  Com.  v.  Price,  3  Pa.  C.  C.  Rep.  175. 


HOW  THE  GRAND  JURY  TRANSACTS  BUSINESS.  147 

examined  all  the  witnesses,  for  the  last  examined  may  supply 
the  evidence  necessary  to  make  out  the  case.119  If  twelve  or 
more,  but  not  exceeding  twenty-three,  agree  to  find  the  bill, 
the  return  was  anciently  at  common  law  "billa  vera,"  but  now 
the  return  is  expressed  in  English,  "a  true  bill."120  If  less  than 
twelve  agree  to  find  the  bill,  it  is  then  said  to  be  ignored,  and 
while  anciently  the  return  was  "ignoramus,"  it  is  now  "ig- 
nored," or  what  is  a  better  return  "not  found."121  But  if  an 
indictment  be  found  with  less  than  twelve  grand  jurors  con- 
curring, the  finding  is  bad122  and  a  motion  in  arrest  of  judg- 
ment will  be  sustained.123 

A  grand  jury  may  find  a  true  bill  as  to  one  or  more  counts 
of  an  indictment,124  but  the  finding  is  bad  if  they  return  a  true 
bill  as  to  part  of  a  count  and  ignore  the  balance  of  the  same 

119  Com.  v.  Ditzler,  i  Lane.  Bar.  (Pa.)  Aug.  28,  1869.    After  an  indict- 
ment has  been  dismissed  and  the  case  again  referred  to  the  grand  jury,  they 
need  not  hear  all  the  witnesses:     Mclntire  v.  Com.,  4  S.  W.  I. 

120  Where  a  bill  is  erroneously  returned  endorsed,  "a  true  bill/'  it  may 
be  shown  on  motion  to  quash  that  the  grand  jury  voted  to  ignore  the  bill 
and  their  clerk  was  directed  to  endorse  it  "not  a  true  bill ;"  State  v.  Hor- 
ton,  63  N.  C.  595. 

121  4  Bl.  Com.  305;  I  Chitty  Cr.  Law  324, 

122  People  v .  Roberts,  6  Calif.  214 ;  People  v.  Butler,  8  Id.  435 ;  People 
v,  Gatewood,  20  Id.  146;  People  v.  Hunter,  54  Id.  65;  Lung's  Case,  i  Conn. 
428;  State  v.  Ostrander,  18  Iowa,  435;  State  v.  Shelton,  64  Iowa,  333;  Don- 
ald v.  State,  31  Fla.  255;  State  v.  Copp,  34  Kan.  522;  Wells  v.  Com.  15  Ky. 
Law  Rep.   179;  Low's  Case,  4  Greenl.   (Me.)   4391  Barney  v.  State,  12 
Smedes  &  M.  (Miss.)  68;  State  v.  McNeill,  93  N.  C.  552;  State  v.  Barker, 
107  Id.  913;  Turk  v.  State,  7  Ham.  (Ohio)  part  2,  p.  240;  In  re  Citizens 
Assn.,   8    Phila.    (Pa.)    478;    State   v.   Williams,   35    S.    C    344;    State 
v.   Brainerd,   56  Vt.   532;    Fitzgerald   v.   State,  4   Wis.   395.    In   English 
v.     State,    31     Fla.    340,    the    court    held    that    Stat.     4015,     Sec    S 
(1891)    was    unconstitutional    upon    the    ground    that    it    authorized    the 
finding  of  an   indictment   upon   the  concurrence   of  eight  grand   jurors. 
And  see  State  v.  Hartley,  40  Pac.  372.    A  grand  jury  of  seven  persons 
does  not  conflict  with  amendments  V  and  XIV  of  the  U.  S.  Constitution : 
Hausenfluck  v.  Com.  85  Va.  702. 

123  2  Hawk.  PI.  C.  Ch.  25,  Sec.  16;  2  Hale  PI.  C.  161 ;  R.  S.  U.  S.,  Sec 
1021 ;  Clyncard's  Case,  Cro.  Eliz.  654;  Sayer's  Case,  8  Leigh  (Va.)  722. 

124  i  Chitty  Cr.  Law  323;  i  Whart.  Cr.  Law.,  Sec.  504  (7th  ed.) ;  Rex.  v. 
Fieldhouse,  I   Cowper  325. 


148  THE    GRAND    JURY. 

count:125  and  if  the  bill  charges  more  than  one  person,  they 
may  find  the  bill  true  as  to  some  of  the  defendants  and  ignore 
it  as  to  the  balance.126  And  where  the  grand  jury  upon  a  bill 
for  murder  find  "billa  vera  se  defendo"  the  finding  is  bad  ;127 
and  so  where  the  bill  charges  murder  and  the  jury  find  for 
manslaughter  only;128  or  where  the  finding  avers  that  the 
offense  was  committed  while  the  defendant  was  insane.129 
Where  the  finding  is  incomplete  or  insensible  it  is  bad.130 

The  finding  of  the  grand  jury  is  then  endorsed  on  the  bill 
accordingly  as  they  may  have  acted,  and  this  return  must  be 
signed  by  the  foreman131  or  the  foreman  pro  tern.,132  as  the 
case  may  be.  In  some  states  it  is  not  essential  to  the  validity 
of  the  indictment  that  it  should  be  signed  by  the  foreman.133 

125  i  Chitty  Cr.  Law  322;  i  Whart.  Cr.  Law,  Sec.  504  (7th  ed.)  ;  2  Hale 
PL  C  162;  King  v.  Ford,  Yelv.  99;  Shouse  v.  Com.  5  Pa.  83;  Com.  v. 
Keenan,  67  Pa.  203;  Com.  v.  Gressly,  12  Lane.  Bar   (Pa.)   52;  State  v. 
Wilhite,  ii  Humph.  (Tenn.)  602;  State  v.  Creighton,  i  N.  &  McC.  (S.  C.) 
256;  State  v.  Wilburne,  2  Brevard  (S.  C.)  296.    And  see  Hall's  Case,  3 
Gratt  (Va.)  593. 

126  i  Chitty  Cr.  Law  323;  2  Hale  PI.  C.  158;  i  Whart.  Cr.  Law  Sec. 
504  (7th  ed.) 

127  Powle's  Case,  2  Rolle  Rep.  52.    In  U.  S.  v.  Elliott,  25  Fed.  Cas. 
1003,  the  grand  jury  made  a  presentment  that  the  defendant  acted  in  self- 
defence  and  the  court  thereupon  ordered  his  discharge  from  custody. 

128  2  Hale  PL  C.  158;  State  v.  Cowan,  i  Head  (Tenn.)  280;  Compare 
People  v.  Nichol,  34  Calif.  211,  where  on  an  indictment  for  murder,  the 
grand  jury  found  a  true  bill  for  murder  in  the  second  degree. 

129  Reg.  v.  Hodges,  8  Car.  &  P.  195. 

130  2  Hawk.  PL  C.  Ch.  25,  Sec.  2 ;  i  Chitty  Cr.  Law  323 ;  i  Whart.  Cr. 
Law,  Sec.  505  (7th  ed.)  ;  R.  v.  Cooke,  8  C.  &  P.  582;  U.  S.  v.  Levally,  36 
Fed.  Rep.  687;  Frisbie  v.  U.  S.,  157  U.  S.  160. 

131  U.  S.  v.  Plumer,  27  Fed.  Cas.  561 ;  Com.  v.  Sargent,  Thach.  Cr.  Cas. 
116;  Com.  v.  Ditzler,  i  Lane.  Bar.  (Pa.)  Aug.  28,  1869;  Com.  v.  Diffen- 
baugh,  3  Pa.  C.  C.  Rep.  299.  That  the  foreman's  name  was  signed  by  the 
clerk  will  not  invalidate  the  indictment,  it  appearing  that  it  was  done  at  the 
foreman's  request  and  in  his  presence :     Benson  v.  State,  68  Ala.  544. 

132  White  v.  State,  93  Ga.  47;  State  v.  Collins,  6  Baxt.  (Tenn.)  151. 

133  McGuffie  v.  State,  17  Ga.  497;  Com.  v.  Ripperdon,  Litt.  Sel.  Cas. 
(Ky.)  194;  Com.  v.  Walters,  6  Dana  (Ky.)  290;  State  v.  Cox,  6  Ired.  (N. 
C.)  440;  State  v.  Calhoon,  I  Dev.  &  Bat.  (N.  C.)  374;  State  v.  Creighton, 
i  N.  &  McC.  (S.  C.)  256;  Pinson  v.  State,  23  Tex.  579;  State  v.  Flores,  33 
Tex.  444;  Robinson  v.  State,  24  Tex.  App.  4;  State  v.  Hill,  35  S.  E.  831. 


HOW  THE  GRAND  JURY  TRANSACTS  BUSINESS.  149 

but  the  ruling  in  these  cases  is  not  to  be  commended.  It  is  at 
variance  with  the  common  law  rule,  and  if  the  signature  be 
omitted,  there  is  nothing  upon  the  bill  to  attest  the  fact  that 
the  finding  was  duly  authorized  or  placed  thereon  by  a  com- 
petent person. 

A  variance  between  the  name  of  the  foreman  as  shown  by 
the  record  of  his  appointment  and  by  the  attestation  of  the 
finding  on  the  bill  is,  in  general,  immaterial.134  It  is  not  ma- 
terial where  the  signature  of  the  foreman  may  be  placed,185 
and  if  he  omit  to  add  his  official  title  and  merely  affix  his  signa- 
ture to  the  finding  it  has  been  held  that  such  endorsement  can 
only  relate  to  his  official  act  as  foreman  and  the  indictment 
will  be  sustained.136  And  likewise  if  he  sign  his  surname  and 
use  the  initials  of  his  Christian  name  only137  or  abbreviate  his 
Christian  name.138 

The  omission  of  the  words  "a  true  bill"  has  been  held  in 
some  states  not  fatal  to  the  indictment139  although  the  weight 
of  authority  is  to  the  contrary,  if  advantage  be  taken,  before 
verdict,  of  the  omission  of  such  finding.140 

134  State  v.  Stedman,  7  Port.  (Ala.)  495;  State  v.  Taggart,  38  Me.  298; 
Com.  v.  Hamilton,  15  Gray  (Mass.)  480;  Geiger  v.  State,  25  Ohio  Cir.  Ct. 
Rep.  742;  State  v.  Calhoon,  I  Dev.  &  Bat.  (N.  C.)  374;  State  v.  Collins,  3 
Dev.  (N.  C)  117.    And  see  People  v.  Roberts,  6  Calif.  214;  Deitz  v.  State, 
123  Ind.  85;  Green  v.  State,  4  Pickle  (Tcnn.)  614. 

135  Goodman  v.  People,  90  111.  App.  533;  State  v.  Bowman,  103  Ind.  69; 
Overshiner  v.  Com.  2  B.  Mon.  (Ky.)  344;  Blume  v.  State,  56  N.  E.  771 ; 
State  P.  Shippey,  10  Minn.  223. 

136  McGuffie  v.  State,  17  Ga.  497;  State  v.  Chandler,  2  Hawks  (N.  C.) 
439;  State  v.  Brown,  31  Vt.  602.    And  see  State  v.  Sopher,  35  La.  Ann.  975 ; 
Whiting  v.  State,  48  Ohio  St.  220. 

137  Wassels  v.  State,  26  Ind.  30;  Zimmerman  v.  State,  4  Ind.  App.  583; 
State  -v.  Groome,  10  Iowa  308 ;  State  v.  Granville,  34  La.  Ann.  1088 ;  Com.  f . 
Gleason,  no  Mass.  66. 

138  Studstill  v.  State,  7  Ga.  2;  State  v.  Folke,  2  La.  Ann  744. 

139  Com.  v.  Smyth,  11  Cush.  (Mass.)  473;  State  v.  Freeman,  13  N.  H. 
488;  Price  v.  Com.  21  Grat.  (Va.)  846;  White  v.  Com.  29  Id.  824;  State  v. 
Hill,  35  S.  E.  831.    And  see  State  v.  Magrath,  44  N.  J.  Law  227,  where  the 
indictments  were  drawn  after  the  investigation  by  the  grand  jury. 

140  Alden  v.  State,  18  Fla.  187;  Gardiner  v.  People,  3  Scam.  (111.)  83; 
Nomaque  v.   People,   Breese    (111.)    109;   Johnson   v.   State,  23   Ind.   32; 
Cooper  v.  State,  79  Ind.  206;  State  v.  Buntin,   123  Ind.   124;   Denton  v. 


I5O  THE   GRAND   JURY. 

It  has  been  said  "the  endorsement  is  parcel  of  the  indict- 
ment, and  the  perfection  of  it,141  but  the  name  of  the  offence 
thus  endorsed  thereon  forms  no  part  of  the  finding  of  the 
grand  jury.142 

The  foreman  must  thus  attest  the  return  even  though  he 
voted  in  a  manner  opposite  to  the  majority  of  the  jurors.  And 
it  was  held  to  be  proper  for  him  to  so  attest  the  return,  not- 
withstanding he  had  been  directed  by  the  court  to  take  no  part 
in  the  consideration  of  that  particular  bill.143 

It  is  no  ground  of  objection  to  the  finding  of  the  grand  jury 
that  they  had  at  first  voted  to  ignore  the  bill  and  afterwards 
reconsidered  their  decision  and  without  hearing  any  additional 
evidence  voted  to  return  a  true  bill.144  After  the  grand  jury 
have  found  a  true  bill  and  presented  it,  they  cannot  thereafter 
vote  to  ignore  the  bill  and  recall  it.145 

While  it  is  the  usual  course,  if  the  bill  be  found,  for  the 
foreman  to  endorse  thereon  "a  true  bill"  with  his  name  and 
"foreman"  annexed,  it  has  been  held  a  sufficient  return  where 
the  endorsement  was  simply  "a  bill"  without  the  word 
"true,"146  and  signed  by  the  foreman.  The  endorsement  of 
the  words  "true  bill"  omitting  the  letter  "a"  is  likewise  a  suf- 

State,  155  Ind.  307;  Com.  v.  Walters,  6  Dana  (Ky.)  290;  Oliver  v.  Com., 
95  Ky.  372;  State  v.  Logan,  104  La.  254;  Webster's  Case,  5  Greenl.  (Me.) 
432;  Spratt  v.  State,  8  Mo.  247;  State  v.  McBroom,  127  N.  C.  528;  Gunkle 
v.  State,  6  Baxt.  (Tenn.)  625;  Bird  v.  State,  103  Tenn.  343. 

141  King  v.  Ford,  Yelv.  99.     See  State  v.  Thacker,  38  S.  E.  539. 

142  State  v.  Rohfrischt,  12  La.  Ann.  382;  State  v.  Valere,  39  Id.  1060; 
State  v.  DeHart,   109  La.  570;   Collins  v.  People,  39  111.  233.    And  see 
Cherry  v.   State,  6  Fla.  679;   Humpeler  v.   People,  92  111.  400;   Com.  v. 
English,  6  Bush  (Ky.)  431;  Thompson  v.  Com.,  20  Gratt.  (Va.)  724. 

143  State  v.  Lightfoot,  78  N.  W.  41. 

144  U.  S.  v.  Simmons,  46  Fed.  Rep.  65.    And  see  State  v.  Clapper,  59 
Iowa  279;  State  v.  Parrish,  8  Humph.  (Tenn.)  80;  State  v.  Brown,  81  N. 
C.  568.     In  People  v.  Sheriff  of  Chautauqua  County,  n   Civ.  Proc.  Rep. 
(N.  Y.)    172,  it  was  held  that  the  grand  jury  had  full  control  of  every 
charge  presented  for  its  investigation  until  its  final  discharge,  and  before 
that  time  may  reconsider  and  change  any  of  its  former  acts. 

145  Fields  v.  State,  25  So.  726.    And  see  In  re  Mbrse,  87  N.  Y.  Sup. 
721. 

146  Sparks  v.  Com.,  9  Pa.  354. 


HOW  THE  GRAND  JURY  TRANSACTS  BUSINESS. 

ficient  return.147  And  it  has  been  held  that  judgment  would 
not  be  arrested  because  the  words  "a  true  bill"  were  printed 
on  the  back  of  the  bill  when  it  was  sent  to  the  grand  jury 
room.148 

Where  there  is  no  endorsement  of  their  finding  and  the  name 
of  the  foreman  only  is  written  thereon,  or  where  the  return  is 
not  signed  at  all,  a  motion  to  quash  the  indictment  or  a  plea  in 
abatement  will  be  sustained.149  The  court,  however,  has  re- 
fused to  arrest  the  judgment  where  the  endorsement,  instead  of 
being  upon  the  bill,  was  upon  the  envelope  in  which  the  bill  was 
enclosed.150 

Where  a  statute  sets  forth  the  manner  in  which  the  foreman 
of  the  grand  jury  shall  endorse  the  indictment,  if  the  act  be 
not  substantially  complied  with,  the  indictment  must  be 
quashed.181 

The  indictment  never  alleges  the  organization  and  action  of 
the  grand  jury.  The  signature  of  the  foreman  vouches  for  the 
regularity  of  the  proceedings  after  the  jury  is  empaneled,  and 
the  records  of  the  court  show  the  venire162  and  the  appoint- 
ment of  the  foreman.153  It  has  been  held  that  the  indictment 
need  not  show  when  it  was  found,154  although  it  is  now  the 
usual  practice  for  the  foreman  to  endorse  upon  the  bill  the 
date  of  its  finding. 

Where  a  bill  contained  ten  counts  and  the  grand  jury  found 

147  Martin  v.  State,  30  Neb.  507;  State  v.  Elkins,  Meigs,  (Tenn.)   109; 
State  v.  Davidson,  12  Vt.  300. 

148  Com.  v.  Usner,  7  Lane.   (Pa.)  57.    And  see  Tilly  v.  State,  21  Fla. 
242;  State  v.  Hogan,  31  Mo.  342;  State  v.  Elliott,  98  Mo.  150;  State  v. 
Williamson,  4  Weekly  Law  Bulletin,  (Ohio)  279. 

149  U.  S.  v.  Levally,  36  Fed.  Rep.  687;  Frisbie  v.  U.  S.f  157  U.  S.  i6a 

150  Burgess  v.  Com.  2  Va.  Cas.  483. 

151  Cooper  v.  State,  79  Ind.  206;  State  v.  Bowman,  103  Ind.  69;  Strange 
v.  State,  no  Ind.  354. 

152  U.  S.  v.  Laws,  26  Fed.  Cas.  892.    And  see  Conner  v.  State,  4  Yerg. 
(Tenn.)  137;  State  v.  Davidson,  2  Cold  (Tenn.)  184. 

153  If  the  indictment  be  returned  endorsed  by  one  of  the  grand  jurors 
as  foreman,  the  record  need  not  show  his  appointment  as  such :    Yates  v. 
People,  38  111.  527. 

154  Burgess  v.  Com.,  2  Va.  Cas.  483;  CONTRA  Com.  v.  Schall,  9  Lane 
Law  Rev.  (Pa.)  332. 


152  THE    GRAND    JURY. 

a  true  bill  and  returned  it  with  the  endorsement  "a  true  bill 
on  both  counts,"  the  finding  was  held  to  be  bad.155 

If  the  grand  jury  return  an  indictment  against  a  defendant 
by  the  initials  of  his  Christian  name  only,  a  plea  in  abate- 
ment will  be  sustained  unless  the  indictment  shows  that  his 
name  is  not  known  to  them  otherwise  than  as  set  out.156  And 
where  the  grand  jury  set  forth  in  the  indictment  that  the 
names  of  the  persons  from  whom  the  defendant  had  received 
certain  contributions  were  unknown  to  them,  but  on  the  trial 
it  appeared  that  the  names  were  known  to  the  grand  jurors,  the 
court  directed  a  verdict  for  the  defendant.157 

Should  they  happen  to  ignore  a  bill,  a  new  bill  charging 
the  same  offence  may  be  submitted  to  the  same  or  a  subsequent 
grand  jury;  but  in  England  a  new  bill  cannot  be  sent  before 
the  same  grand  jury  although  it  may  be  found  by  a  subsequent 
one.158 

The  practice  of  submitting  a  new  bill  to  the  same  or  a  sub- 
sequent grand  jury  has  nothing  in  it  to  commend  it,  while  it 
has  been  very  severely  criticised.  That  such,  however,  is  the 
law  is  undoubted159  and  Mr.  Justice  Woodward  says,100  "If 

155  R.  v.  Cooke,  8  Car.  &  P.  582.  See  People  v.  Hulbut,  4  Denio.  (N.  Y.) 
133- 

156  U.  S.  v.  Upham,  43  Fed.  Rep.  68;  Gerrish  v.  State,  53  Ala.  476; 
O'Brien  v.  State,  91  Ala.  25 ;  Gardner  v.  State,  4  Ind.  632 ;  Jones  v.  State, 
ii  Ind.  357.    And  see  Skinner  v.  State,  30  Ala.  524;  Levy  v.  State,  6  Ind. 
281 ;  Wilcox  v.  State,  34  S.  W.  958.    CONTRA  State  v.  Webster,  30  Ark. 
166;  Com.  v.  Kelcher,  3  Met.  (Ky.)  485;  State  v.  Johnson,  93  Mo.  73. 

157  U.  S.  v.  Riley,  74  Fed.  Rep.  210.    And  see  Cheek  v.  State,  38  Ala. 
227;  Winten  v.  State,  90  Ala.  637;  Blodget  v.  State,  3  Ind.  403;  Yost  v. 
Com.,   5   Ky.   Law   Rep.   935;    State   v.   Stowe,    132   Mo.    199;    Sault   v. 
People,  34  Pac.  263. 

158  4  Bl.  Com.  305;  Reg.  v.  Austin,  4  Cox  C.  C.  385;  Reg.  v.  Hum- 
phreys, Car.  &  M.  601.    CONTRA  i  Chitty  Cr.  Law  325;  R.  v.  Newton,  2  M. 
&  Rob.  503 ;  Queen  v .  Simmonite,  i  Cox  C.  C.  30. 

159  U.  S.  v.  Martin,  50  Fed.  Rep.  918;  Christmas  v.  State,  53  Ga.  81 ; 
State  v.  Green,  1 1 1  Mo.  585 ;  State  v.  Brown,  81  N.  C.  568 ;  State  v.  Har- 
ris, 91  N.  C.  656;  Ex  Parte  Job,  30  Pac.  699;  State  v.  Reinhart,  38  Pac. 
822;  i  Chitty  Cr.  Law  325.     Mr.  Chitty,  however,  states,  p.  324,  when  the 
bill  is  ignored  "the  party  is  discharged  without  further  answer,"  which  is 
inconsistent  with  his  subsequent  statement. 

160  Rowand  v.  Com.,  82  Pa.  405. 


HOW  THE  GRAND  JURY  TRANSACTS  BUSINESS.  153 

the  question  were  an  open  one,  there  would  be  little  doubt  as  to 
the  rule  it  would  be  the  duty  of  this  court  to  lay  down.  On 
principle,  the  return  of  "ignoramus"  made  on  an  indictment 
by  a  grand  jury  ought  to  be  the  end  of  the  prosecution  orig- 
inating in  the  information  returned  by  the  committing  mag- 
istrate. The  defendant  has  complied  with  the  conditions  of 
his  recognizance.  The  prosecution  has  failed  with  the  failure 
of  the  bill.  The  sureties  of  the  defendant  are  released,  and  he 
is  entitled  to  be  discharged.181  In  analogy  to  the  rules  by 
which  other  judicial  proceedings  are  governed,  this  ought  to 
be  the  end  of  the  case  founded  on  the  complaint  he  was  called 
on  in  the  first  instance  to  answer." 

It  has  therefore  been  held  to  be  error,  where,  after  a  grand 
jury  had  ignored  a  bill,  a  defendant  was  held  in  bail  to  answer 
the  same  charge  without  a  new  prosecution  being  instituted.182 

Where  the  grand  jury  ignored  the  bill  and  an  application 
was  made  to  the  court  by  private  counsel  for  the  prosecutor 
for  leave  to  send  a  new  bill  before  the  next  grand  jury,  the 
court  held  that  in  the  absence  of  any  allegations  of  irregu- 
larity or  fraud  it  had  no  jurisdiction  to  review  the  proceed- 
ings of  the  grand  jury  or  direct  the  sending  of  a  new  bill 
to  the  next  grand  jury.163 

In  some  states,  it  has  been  provided  by  statute  that  a  bill 
once  ignored  shall  not  again  be  submitted  to  the  grand  jury 
except  by  leave  of  court;184  but  this  has  been  construed  not  to 
apply  to  a  bill  charging  a  different  offence  arising  out  of  the 
same  assault185  nor  to  a  case  where  the  grand  jury  on  their 
own  motion  find  an  indictment  which  has  once  been  dis- 
missed.188 


161  In  U.  S.  v.  Bates,  24  Fed.  Cas.  1042,  it  was  held  that  a  prisoner  was 
not  entitled  to  be  discharged  because  the  grand  jury  ignored  the  bill. 

162  In  re  Moragne,  53  Pac.  3. 

163  Com.  v.  Priestley,  10  Dist.  Rep.  (Pa.)  217.     And  see  Com.  v.  Allen, 
14  Pa.  C.  C.  Rep.  546;  Com.  v.  Charters,  20  Pa.  Superior  Ct.  599;  In  re 
Moragne,  53  Pac.  3. 

164  State  v.  Collis,  73  Iowa  542;  People  v.  Clements.  5  N.  Y.  Cr.Rep.  288; 
People  v.  Warren,  109  N.  Y.  615. 

165  People  v.  Warren,  109  N.  Y.  615. 

166  State  v.  Collis,  73  Iowa  542. 


154  THE   GRAND   JURY. 

When  the  grand  jurors  have  completed  their  findings,  they 
are  prepared  to  return  into  court  and  make  their  present- 
ment. They  therefore  proceed  from  their  room  to  the  court 
room  where  they  were  empaneled,  and  the  names  of  the  grand 
jurors  being  called,  those  present  answer  thereto.  They  are 
then  asked  by  the  crier  if  they  have  agreed  upon  any  bills  and 
bade  to  present  them  to  the  court.167  The  indictments  having 
been  brought  in  by  the  foreman,168  they  are  handed  by  him  to 
the  crier,  who  asks  if  they  agree  that  the  court  shall  amend 
matter  of  form  altering  no  matter  of  substance.  To  this  the 
grand  jury  signify  their  assent.  This  assent  it  has  been  said 
was  necessary  to  be  had  at  common  law  in  order  that  clerical 
errors  in  the  indictment  might  be  corrected ;  without  the  consent 
of  the  grand  jury,  the  court  was  powerless  to  make  any  alter- 
ation in  the  bill  as  found,  and  with  it,  cannot  alter  the  indict- 
ment in  matter  of  substance.169 

In  Pennsylvania,170  in  view  of  the  act  of  March  31,  1860, 
which  allows  the  court  for  any  formal  defect  appearing  on  the 
face  of  the  indictment  to  forthwith  cause  such  defect  to  be 
amended,  it  would  seem  no  longer  necessary  to  obtain  the  as- 
sent of  the  grand  jury  to  the  making  of  a  change  which  the 
law  directs  shall  be  made.  And  this  would  also  seem  to  be 
the  law  in  the  Federal  courts.171 

Where  it  becomes  necessary  to  alter  an  indictment  in  matter 
of  substance,  the  bill  may  be  re-submitted  to  the  same  grand 
jury  which  originally  found  it,  if  they  are  then  in  session,  and 
they  may  find  a  true  bill  in  its  altered  form  without  hearing 

167  i  Whart.  Cr.  Law,  Sec.  500.  (7th  ed.) 

168  Laurent  v.  State,  i  Kan.  313 ;  Com.  v.  Cawood,  2  Va.  Cas.  527.    They 
should  not  be  brought  in  by  the  foreman  alone,  but  by  the  grand  jury  as  a 
body:     State  v.  Bordeaux,  93  N.  C.  560.    People  v.  Lee,  2  Utah  441. 

169  I  Chitty  Cr.  Law  324;  Ex  Parte  Bain,  121  U.  S.  I ;  Sparks  v.  Com., 
9  Pa.  354.     In  Harrison  v.  Com.,  123  Pa.  508,  where  the  district  attorney 
amended   the    indictment   by    inserting    "copper"    before    "lightning    rod," 
without  submitting  the  amended  bill  to  the  grand  jury,  this  point  was 
raised,  but  the  court  below  awarded  a  new  trial  upon  other  grounds. 

170  Sec.  n,  P.  L.  427. 

171  R.  S.  U.  S.  Sec.  1025;  Caha  v.  U.  S.,  152  U.  S.  211. 


HOW  THE  GRAND  JURY  TRANSACTS  BUSINESS.  155 

any  further  evidence.172  If  the  grand  jury  which  found  the 
bill  has  been  discharged,  then  the  altered  bill,  or  what  is  better, 
a  new  bill  may  be  submitted  to  a  subsequent  grand  jury,178 
but,  in  either  event  they  cannot  find  a  true  bill  unless  evidence 
is  heard  in  support  thereof.  In  Ex  Parte  Bain174  the  district 
attorney  amended  the  indictment  in  matter  of  substance  by 
leave  of  court  and  without  re-submitting  the  bill  to  the  grand 
jury.  The  defendant  was  tried,  convicted  and  sentenced  to 
the  penitentiary.  Upon  habeas  corpus  proceedings,  the  de- 
fendant was  discharged,  the  United  States  Supreme  Court 
holding,  "Upon  an  indictment  so  changed  the  court  can  pro- 
ceed no  farther.  There  is  nothing  (in  the  language  of  the 
Constitution)  which  the  prisoner  can  be  held  to  answer.  A 
trial  on  such  an  indictment  is  void.  There  is  nothing  to  try." 
If  the  grand  jury  after  hearing  the  evidence  find  a  true  bill 
without  it  being  read  to  them,  it  has  been  held  not  to  afford 
ground  for  setting  aside  the  indictment  so  found.175  It  is 
difficult,  however,  to  reconcile  this  decision  with  the  ruling  in 
Ex  Parte  Bain.  It  can  hardly  be  said  that  the  finding  of  a 
bill,  the  contents  of  which  are  unknown  to  the  grand  jurors,  is 
any  more  their  finding  than  the  bill  altered  in  substance  after 
presentment.  The  grand  jury  have  no  knowledge  of  the  na- 
ture of  the  charge  to  which  they  give  their  sanction.  They 
may  vote  to  find  a  true  bill  upon  the  evidence  they  have  heard, 
while  the  allegations  of  the  bill  to  which  their  sanction  has 
apparently  been  given  may  present  a  totally  different  offence, 
and  which,  if  known  to  the  grand  jurors  upon  hearing  the  evi- 
dence, they  would  have  ignored.  But  the  reading  of  the  en- 

172  Com.  v.  Woods,  10  Gray  (Mass.)  477.     In  Com.  v.  Clune,  162  Mass. 
206,  the  same  ruling  was  made,  although  some  of  the  grand  jurors  who 
found  the  former  indictments  were  absent  and  their  places  were  filled  by 
jurors  who  had  heard  no  evidence.     See  State  v.  Peterson,  61  Minn.  73. 

173  i  Chitty  Cr.  Law  325;  State  v.  Allen,  R.  M.  Charltons  Rep.  (Ga.) 
518;  Com.  v.  Woods,  10  Gray  (Mass.)  477;  see  State  v.  Davidson,  2  Cold. 
(Tenn.)  184;  Lawless  v.  State,  4  Lea  (Tenn.)  173. 

174  121  U.  S.  i ;  and  see  Watts  v.  State,  57  Atl.  542. 

175  U.  S.  v.  Terry,  39  Fed.  Rep.  355.    And  see  U.  S.  v.  Farrington.  5 
Fed.  Rep.  343,  where  the  court  directs  attention  to  this  fact,  but  quashed 
the  indictment  upon  other  grounds. 


156  THE    GRAND    JURY. 

tire  bill  may  be  dispensed  with  providing  the  material  por- 
tions of  the  bill  charging  the  offence  be  read  to  the  grand  jury. 

They  are  not  required  to  read  in  open  court  their  finding 
upon  the  various  bills  of  indictment  presented  by  them.176  The 
handing  of  the  bill  to  the  crier  or  clerk  and  the  entry  made  by 
him  on  the  records  is  a  sufficient  publication  of  the  finding  of 
the  grand  jury.177  And  where  indictments,  when  found, 
were  sent  into  court  by  the  district  attorney  or  a  messenger 
and  they  were  neither  presented  by  the  grand  jury  or  a  mem- 
ber thereof,  the  court  refused  to  quash,  the  indictments  hav- 
ing been  recorded  by  the  clerk.178 

The  finding  of  the  grand  jury  should  be  recorded  by  the 
clerk  of  the  court  and  a  failure  to  do  this  cannot  be  excused 
by  the  defendant  pleading  not  guilty,  and  a  motion  in  arrest 
of  judgment  will  be  sustained  upon  this  ground.179  And 

176  U.  S.  v.  Butler,  25  Fed.  Cas.  213;  Hopkins  v.  Com.  50  Pa.  9. 

177  Id..    And  see  Hogan  v.  State,  30  Wis.  428. 

178  Com.  v.  Salter,  2  Pears.  (Pa.)  461;  Danforth  v.  State,  75  Ga.  614; 
Laurent  v.  State,  i  Kan.  313. 

179  Holcombe  v.  State,  31  Ark.  427;  Thornell  v.  People,  n  Colo.  305; 
Gardner  v.  People,  20  111.  430;  Kelly  v.  People,  39  111.  157;  Aylesworth 
v.   State,  65   111.  301 ;   Adams  v.   State,   1 1   Ind.  304 ;   Heacock  v.   State, 
42  Ind.  393;  State  v.  Glover,  3  G.  Greene  (Iowa)  249;  State  v.  Sandoz, 
37  La.  Ann.  376;  Jenkins  v.  State,  30  Miss.  408;  Pond  v.  State,  47  Miss. 
39;  State  v.  Brown,  81  N.  C.  568;  State  v.  Davidson,  2  Cold.  (Tenn.)  184; 
Rainey  v.   People,  3  Gil.    (111.)    71;   Chappel  v.   State,  8  Yerg.    (Tenn.) 
166;  Brown  v.  State,  7  Humph.  (Tenn.)  155;  Hardy  v.  State,  I  Tex.  App. 
556;  Simmons  v.  Com.,  89  Va.  156;  Com.  v.  Cawood,  2  Va.  Cas.  527;  State 
•v.  Gilmore,  9  W.  Va.  641 ;  State  v.  Heaton,  23   W.  Va.  773.    CONTRA  Moore 
v .  State,  81  S.  W.  48 ;  State  v.  Crilly,  77  Pac.  701 ;  People  v.  Lee,  2  Utah 
441 ;  Mose  v.  State,  35  Ala.  421.    And  see  as  to  a  sufficient  record  of  the 
finding:     McCuller  v.  State,  49  Ala.  39;  Robinson  v.  State,  33  Ark.  180; 
Johnson  v.  State,  24  Fla.  162;  Fitzpatrick  v.  People,  98  111.  269;  Kelly  v. 
People  132  111.  363 ;  Wall  v.  State,  23  Ind.  150;  Beavers  v.  State,  58  Ind.  530; 
Clare  v.  State,  68  Ind.  17;  Reeves  v.  State,  84  Ind.  116;  Heath  v.  State,  101 
Ind.  512;  Millar  v.  State,  2  Kan.  174;  Patterson  v.  Com.,  86  Ky.  313;  Nich- 
ols v.  State,  46  Miss.  284 ;  State  v.  Vincent,  91  Mo.  662 ;  State  v.  Gainus,  86 
N.  C.  632;  Hopkins  v.  Com.,  50  Pa.  9;  Bennett  v.  State,  8  Humph.  (Tenn.) 
118;  Maples  v.  State,  3  Heisk  (Tenn.)  408;  Peeples  v.  State,  35  So.  223; 
Pearce  v.  Com.,  8  S.  W.  893 ;  State  v.  Jones,  42  Pac.  392.    In  State  v.  Muz- 
ingo,  19  Tenn.  (Meigs)   112,  it  was  held  that  a  presentment  of  the  grand 
jury  need  not  be  entered  on  the  minutes  of  the  court. 


ITS  RELATION  TO  THE  COURT.  157 

where  several  persons  are  indicted  in  the  one  bill  and  the  find- 
ing is  recorded  as  to  one  only,  the  court  will  sustain  the  in- 
dictment against  the  defendant  as  to  whom  the  finding  was 
properly  recorded,  and  quash  as  to  the  other  defendants.180 

When  the  finding  of  the  grand  jury  has  been  recorded,  the 
bills  of  indictment  should  be  filed.  In  some  states  the  statutes 
make  provision  for  the  filing  of  indictments.  Such  provisions, 
however,  may  in  general  be  regarded  as  directory181  and 
courts  are  disinclined  to  invalidate  an  indictment  where  the 
statute  has  not  been  complied  with.182  If  the  date  of  the  filing 
has  not  been  endorsed  on  the  indictment,  the  court  may  there- 
after direct  that  the  actual  date  of  filing  be  endorsed  thereon.183 

When  the  grand  jurors  have  completed  all  the  duties  which 
will  devolve  upon  them,  it  is  now  customary  for  them  to  pre- 
pare a  written  report  of  their  work,  which  is  signed  by  their 
foreman  and  handed  to  the  court  crier  with  the  indictments. 
In  this  report  they  frequently  take  occasion  to  discuss  various 
matters  affecting  the  public  welfare,  criticise  public  officials, 
act  as  censors  of  the  morals  of  the  community,  and  make  re- 
commendations which  it  is  impracticable  and  impossible  to 
carry  into  effect. 

That  they  are  acting  outside  of  their  duties  as  grand  jurors 
in  making  such  presentments  will  hardly  be  doubted.  As  the 
official  accuser  for  the  government,  their  duty  is  to  present  per- 
sons not  things.  That  this  practice  should  be  continued  upon 
the  ground  that  it  calls  to  the  public  eye  abuses  in  the  admin- 
istration of  government  or  the  existence  of  vice  in  the  com- 
munity, is  a  proposition  which  rests  upon  no  logical  basis.  If 
they  have  any  evidence  of  the  things  which  they  thus  set  forth, 


180  Drake  and  Cochren's  Case,  6  Gratt  (Va.)  665;  State  v.  Compton,  13 
W.  Va.  852.    CONTRA  State  v.  Banks,  40  La.  Ann.  736. 

181  Stanley  v.  State,  88  Ala.  154;  Dawson  v.  People,  25  N.  Y.  399. 

182  Pittman  v.  State,  25  Fla.  648;  Engelman  v.  State,  2  Cart.  (Ind.)  91 ; 
State  v.  Jolly,  7  Iowa  15;  Com.  v.  Stegala,  8  Ky.  Law  Rep.  142;  Reynolds 
v.  State,  it  Tex.  120. 

183  Franklin  v.  State,  28  Ala.  9;  State  v.  Gowen,  7  Eng.   (Ark.)  62; 
James  v.  State,  41  Ark.  451 ;  Pence  v.  Com.  95  Ky.  618;  State  r.  Clark,  18 
Mo.  432;  Caldwell  v.  State,  5  Tex.  18;  Rippey  v.  State,  29  Tex.  App.  37. 


158  THE    GRAND    JURY. 

it  is  their  duty  to  the  public  and  to  themselves  under  their 
oath,  to  present  the  individuals  guilty  of  such  offences.184  If 
they  have  no  personal  knowledge  of  the  facts,  they  are  then 
proceeding  in  a  manner  contrary  to  law.185  If  they  know  the 
things  which  they  present,  they  should  present  individuals; 
it  they  do  not  know,  they  are  committing  a  wrong  in  making 
broad  accusations,  which,  while  they  cannot  be  sustained, 
grievously  injure  those  to  whom  they  indirectly  apply. 

This  practice  received  severe  condemnation  over  seventy 
years  ago  at  the  hands  of  Honorable  Daniel  Davis186  then 
Attorney  General  for  the  State  of  Massachusetts,  who  says: 
"The  practice,  not  uncommon  in  some  parts  of  the  United 
States,  of  bringing  forward,  in  the  form  of  presentments, 
what  are  denominated  public  grievances,  relative  to  the  politi- 
cal or  moral  state  of  the  country,  is  altogether  extra-official, 
and  may  be  and  has  been  adopted  and  pursued  for  purposes 
foreign  to,  and  inconsistent  with,  the  nature  of  the  institution ; 
and  perhaps  it  is  not  too  much  to  assert,  that  the  opportunity 
has  been  used  and  perverted  to  party  purposes,  and  with  an  in- 
tention to  produce  an  effect  upon  public  measures  and  the 
public  mind.  Whenever  this  shall  be  the  case  it  is  to  be  con- 
sidered in  the  same  light  as  any  other  usurpation  or  abuse 
of  the  judicial  authority.  It  may,  with  the  same  propriety,  be 
exercised  by  any  other  branch  of  the  judicial  power,  by  the 
court,  or  the  traverse  jury,  as  well  as  the  grand  jury." 

In  the  case  of  Rector  v.  Smith,186*  the  grand  jury  made  a 
written  report  to  the  court  wherein  libellous  statements  were 
made  relating  to  the  conduct  of  a  person  then  in  public  office. 
An  action  for  libel  was  begun  against  the  clerk  of  the  grand 
jury  who  had  brought  the  report  into  court  and  there  read  it. 

184  See  Judge  Stowe's  Charge  to  Grand  Jury,  3  Pitts.  Rep.  (Pa.)  page 
179.    It  may  be  doubted  whether  this  charge,  so  far  as  it  relates  to  the 
power  of  the  grand  jury  to  originate  prosecutions,  is  entirely  correct;  it  is 
at  least  an  inadequate  statement  of  the  authority  of  the  grand  jury. 

185  Case  of  Lloyd  and  Carpenter,  3  Clark  (Pa.)   188. 

186  Precedents  of  Indictments,  p.  n. 
186*  ii  Iowa  302. 


ITS  RELATION  TO  THE  COURT.  1 59 

An  answer  was  filed  by  the  defendant  who  claimed  the  report 
was  a  privileged  communication,  to  which  answer  the  plaintiff 
demurred  but  the  demurrer  was  overruled  by  the  lower  court. 
On  appeal,  the  Supreme  Court  affirmed  the  judgment  and 
expressly  ruled  that  the  report  was  not  a  privileged  communica- 
tion. In  delivering  the  opinion  of  the  court,  Balwin,  J.,  says : 
"The  grand  jury  have  no  power,  nor  is  it  their  privilege  or 
duty  to  present  any  person  for  a  criminal  offence  except  by  in- 
dictment If  the  misconduct  of  an  officer  does  not  amount  to 
a  crime,  and  is  not  of  such  magnitude  as  will  justify  the  jury 
in  finding  an  indictment,  their  powers  over  the  offence  com- 
plained of,  are  at  an  end A  report  by  a  grand 

jury,  presents  nothing  upon  which  the  court  can  act,  unless  it 
is  in  reference  to  the  condition  of  the  prison.  The  court  can 
take  no  jurisdiction  over  the  complaint  charged  by  such  report. 
Nor  can  a  person  thus  presented  have  an  opportunity  to  show 
himself  innocent  of  the  matters  complained  of.  With  this 
view  of  the  question  we  conclude  that  the  report  presented  by 
the  defendant  as  a  juror,  was  not  a  privileged  communication, 
and  that  he  cannot  plead  this  in  bar  of  plaintiff's  right  to  re- 
cover." 

When  the  grand  jury  in  their  presentment  thus  go  beyond 
their  lawful  authority,  whether  they  refer  to  persons  by  name, 
title,  or  by  innuendo,  or  to  any  particular  matter  or  thing,  it  be- 
comes a  serious  question  whether  or  not  their  presentment 
should  be  permitted  to  stand.  Clearly  in  such  instance  they 
have  exceeded  their  authority,  and  in  such  event  their  present- 
ment rests  upon  no  legal  foundation.  There  would  conse- 
quently seem  to  be  no  valid  reason  why  a  motion  to  quash  or 
dismiss  the  presentment,  or  strike  it,  or  the  objectionable  part 
thereof,  from  the  files  should  not  be  made.  If  the  grand  jurors 
have  exceeded  their  authority  in  making  such  presentment,  it  is 
clearly  invalid  and  illegal  and  may  be  subjected  to  attack  either 
by  the  attorney  for  the  state  or  by  the  person  or  persons  to 
whom  the  presentment  may  relate,  in  the  same  manner  as  any 
presentment  or  indictment  may  be  attacked.  This  course  has 
been  pursued  in  Georgia186**  where  the  grand  jury  made  a  pre- 
186**  Presentment  of  Grand  Jury,  i  R.  M.,  Charlt.  149. 


I6O  THE   GRAND   JURY. 

sentment  reflecting  upon  the  judges  of  the  Superior  Court. 
The  attorney  general  moved  to  expunge  the  presentment  from 
the  minutes  which  was  accordingly  done. 

After  submitting  their  report  they  are  then  discharged  from 
further  service  by  the  court,  and  go  out  and  mingle  with  their 
fellow  citizens  and  their  identity  as  grand  jurors  is  forever 
lost.187  But  a  grand  jury  cannot  legally  dissolve  itself188  or 
dismiss  or  excuse  any  of  its  members.189  This  is  the  preroga- 
tive of  the  court  alone  and  until  the  court  takes  such  action, 
the  existence  of  the  grand  jury  continues  during  the  balance  of 
the  statutory  period  for  which  it  was  summoned.190  It  may 
be  dismissed  from  time  to  time  during  the  period  for  which  it 
was  convened  and  again  summoned  back  to  duty  when  any 
matters  are  to  be  laid  before  it;191  or  it  may  adjourn  upon  its 
own  motion  and  again  reconvene  and  act  whether  court  is  in 
session  or  not.192  But  when  the  record  shows  that  the  grand 
jury  has  been  discharged,  it  will  be  presumed  to  have  been 
legally  and  properly  discharged.193 

Whether  or  not  the  members  of  the  grand  jury  may  be 
again  re-assembled  after  once  being  discharged  is  a  matter  as 
to  which  there  is  considerable  difference  of  opinion.  Two 

187  Chief  Justice  Shaw's  Charge  to  Grand  Jury,  8  Am.  Jurist  216;  Ad- 
dison,  App.  75. 

188  In  re  Gannon,  69  Calif.  541. 

189  See  Gladden  v.  State,  12  Fla.  562;  Smith  v.  State,  19  Tex.  App.  95; 
Watts  v.  State,  22  Id.  572;  Drake  v.  State,  25  Id.  293;  Jackson  v.  State,  25 
Id.  314. 

190  In  re  Gannon,  69  Calif.  541 ;  People  v.  Leonard,  106  Calif.  302 ;  State 
v.  Bennett,  45  La.  Ann.  54;  Com.  v.  Rich,  14  Gray  (Mass.)  335.    And  see 
Barger  v.  State,  6  Blackf.  (Ind.)  188;  Harper  v.  State,  42  Ind.  405.  R.  S. 
U.  S.  811  provides:     "The  circuit  and  district  courts,  the  district  courts  of 
the  Territories,  and  the  supreme  court  of  the  District  of  Columbia,  may 
discharge  their  grand  juries  whenever  they  deem  a  continuance  of  the  ses- 
sions of  such  juries  unnecessary." 

191  Ulmer  v.  State,  14  Ind.  52;  Long  v.  State,  46  Ind,  582;  State  v.  Pate, 
67  Mo.  488.    That  the  grand  jurors  did  not  return  until  after  the  day 
designated  will  not  dissolve  the  grand  jury:    Clem  v.  State,  33  Ind.  418. 

192  Nealon  v.  People,  39  111.  App.  481 ;  People  v.  Sheriff  of  Chautauqua 
County,  II  Civ.  Proc.  Rep.  172.     And  see  Com.  v.  Bannon,  97  Mass.  214. 

193  White  v.  People,  81  111.  333.    And  see  Stati  v.  Wingate,  4  Ind.  193. 


ITS  RELATION  TO  THE  COURT.  l6l 

learned  writers  hold194  that  "When  an  emergency  arises,  re- 
quiring the  presence  of  a  grand  jury  after  the  regular  body  has 
been  discharged,  in  the  absence  of  statutory  authority  to  sum- 
mon a  new  panel,  the  court  should  set  aside  the  order  of  dis- 
charge and  re-assemble  the  previous  grand  jury."195  But  a 
contrary  and  what  would  seem  the  better  opinion,  is  held  by 
Hon.  Daniel  Davis,196  who  says:  "When  the  grand  jury  have 
finished  their  business  and  been  unconditionally  discharged, 
they  cannot  be  re-summoned  and  reorganized.  No  grand  jury 
can  be  created  or  brought  into  existence  but  in  the  manner  di- 
rected by  the  statutes  of  the  state." 

It  would  seem  that  grand  jurors  in  such  cases  are  analo- 
gous to  petit  jurors,  who,  upon  being  discharged  from  further 
service  and  having  separated,  cannot  again  be  reassembled. 
The  statutes  provide  a  method  for  selecting  and  summoning 
grand  jurors  and  the  requirements  of  these  statutes  must  be 
strictly  followed.  When,  therefore,  the  grand  jurors  have 
been  discharged,  their  official  capacity  at  once  comes  to  an  end 
and  they  are  but  ordinary  citizens.  To  set  aside  the  order  of 
discharge  would  not  restore  them  to  their  former  official  po- 
sition. Their  official  capacity  having  once  terminated,  it  can 
only  be  again  created  by  the  method  provided  by  statute.197 
If  there  is  no  statute  which  provides  for  setting  aside  the  order 
of  discharge  and  the  reassembling  of  the  grand  jury  with  the 


194  Thompson  &  Merriam  on  Juries,  Sec.  497. 

195  See  Newman  v.  State,  43  Tex.  525. 

196  Precedents  of  Indictments,  p.  30.    And  see  Reg.  v.  Holloway,  9  Car. 
&  P.  43- 

197  Findley  v.  People,  i  Manning  (Mich.)  234:  In  Mackey  v.  People,  2 
Colo.  13,  the  indictment  was  found  by  a  special  grand  jury  summoned  during 
the  term  and  after  the  regular  grand  jury  had  been  discharged  for  the  term. 
The  defendant  challenged  the  array  upon  the  ground  that  the  statute  pro- 
vided that  the  regular  grand  jurors  had  been  summoned  for  the  term  and 
that  after  they  were  discharged  no  grand  jury  could  be  summoned  until  the 
next  term.    The  challenge  was  overruled  upon  the  ground  that  there  was 
a  common  law  power  in  the  court  to  so  cause  a  grand  jury  to  be  sum- 
moned and  that  it  did  not  conflict  with  the  statute.    And  see  Stone  v. 
People,  2  Scam.  (111.)  326;  Empson  v.  People,  78  111.  248;  Freel  v.  State, 
21  Ark.  212;  State  r.  Grimes,  50  Minn.  123. 

II 


1 62  THE    GRAND    JURY. 

same  power  as  before  its  discharge,  a  grand  jury  thus  called 
back  to  duty  would  not  be  lawfully  organized.198 

The  order  of  discharge  cannot  be  collaterally  attacked.199 
When  the  grand  jurors  are  in  session  or  during  the  time  they 
retain  their  official  position  their  oath  restrains  them  from  dis- 
closing to  any  one  out  of  the  grand  jury  room  that  which  trans- 
pires therein,  and  it  is  likewise  unlawful  for  any  one  to  ap- 
proach a  grand  juror  and  attempt  in  any  manner  to  influence 
his  action.  When  actually  engaged  in  his  duties  as  a  grand 
juror  he  is  prohibited  from  holding  communication  with  any 
one  except  the  court,  the  district  attorney,  such  witnesses  as  are 
sent  before  the  grand  jury  by  the  district  attorney,  and  his 
fellow  jurors.  It  is  improper  for  any  one  else  to  send  com- 
munications to  the  grand  jurors,  or  for  them  to  receive  them, 
whether  with  a  view  to  influence  the  action  of  the  grand  jury 
or  not.200  If  any  person  outside  the  grand  jury  room  has 
knowledge  of  any  matter  proper  for  their  consideration,  he 
should  lay  such  information  before  the  district  attorney  who 
will  act  accordingly,  but  he  must  not  attempt  to  have  any  direct 
communication  with  them. 

This  question  arose  in  Pennsylvania  in  the  case  of  Com- 
monwealth v.  Crans,201  where  the  defendant  sent  a  communi- 
cation to  the  grand  jury,  giving  his  views  upon  certain  sub- 
jects which  were  liable  to  come  before  them,  and  Judge 
Parsons,  there  said,  "if  they  (the  grand  jurors)  are  to 
be  instructed  previous  to  their  retiring  by  the  judge  who  pre- 

198  Gay  v.  State,  49  S.  W.  612;  Matthews  v.  State,  58  S.  W.  86;  Trevinio 
v.  State,  27  Tex.  App.  372.    See  State  v.  Reid,  20  Iowa  413. 

199  State  v.  Hart,  67  Iowa  142.    It  is  impossible  to  reconcile  the  ruling 
in  this  case  with  those  cases  which  hold  a  new  grand  jury  to  be  illegally 
empanelled  because  the  former  grand  jury  was  not  legally  discharged. 

200  People  v.  Sellick,  4  N.  Y.  Cr.  Rep.  329;  Charge  to  Grand  Jury,  30 
Fed.  Cas.  992;  Com.  v.  Crans,  2  Clark  (Pa.)  441 ;  Doan's  Case,  5  Pa.  Dist. 
Rep.  211.    And  see  Henry  Bergh's  Case,  16  Abb.  Pr.  N.  S.  (N.  Y.)  266; 
People  v.  Shea,  147  N.  Y.  78.    The  authority  of  the  grand  jury  to  investi- 
gate a  criminal  charge  is  not  affected  by  an  order  from  the  President  of 
the  United  States  to  the  district  attorney  directing  him  not  to  prosecute  the 
defendant :     In  re  Miller  17  Fed.  Cas.  295. 

201  2  Clark  (Pa.)  441. 


ITS  RELATION  TO  THE  COURT.  163 

sides,  it  necessarily  follows  they  are  not  to  be  instructed  after 
they  retire  to  their  rooms  by  any  one  else.  Individuals  have 
no  more  right  to  appear  before  them  to  discuss  matters,  or 
send  them  letters  relative  to  subjects  which  are  before  them, 
or  which  may  come  before  them,  than  they  would  have  to  com- 
municate with  a  petit  jury  after  a  charge  had  been  delivered 
from  the  bench,  in  relation  to  a  case  which  had  just  been  tried." 

From  the  time  the  grand  jurors  are  summoned  until  finally 
discharged,  they  bear  an  official  relation  to  the  court,  and  while 
all  jurists  agree  that  they  are  under  the  control  of  the  court, 
none  have  expressed  a  well  defined  opinion  as  to  how  far  the 
authority  of  the  court  over  the  grand  jurors  extends,  or  to 
what  extent  they  are  independent  of  the  court.202 

In  the  days  of  Bracton  and  Britton  and  for  a  long  period 
thereafter,  such  a  question  as  this  would  have  been  easy  to  de- 
termine. Then,  the  grand  jury  was  but  an  instrument  wholly 
under  the  control  of  the  justices  and  acting  in  such  manner 
as  they  should  direct.  If  the  justices  so  desired,  the  grand 
jurors  would  hear  the  evidence  (when  it  became  customary  for 
them  to  hear  evidence)  in  open  court.  If  they  heard  any  evi- 
dence in  private  or  acted  as  they  then  most  usually  did,  upon 
their  own  knowledge,  or  upon  hearsay,  it  was  optional  with  the 
justices  to  compel  them  to  disclose  how  they  obtained  knowl- 
edge of  the  facts  which  the  jurors  set  forth  in  their  pre- 
sentment, and  the  court  was  at  liberty  to  set  this  presentment 
aside.  And  it  would  seem  that  where  a  false  presentment  was 
made  the  jurors  were  liable  either  to  be  fined  or  be  imprisoned 
at  the  pleasure  of  the  king's  justices,  and  likewise,  if  the  grand 
jurors  refused  to  present  when  directed  to  do  so  by  the  jus- 
tices. 

The  causes  which  tended  to  make  the  grand  jury  to  a  cer- 
tain extent  independent  of  the  court  have  been  heretofore  fully 
considered,203  and  while  the  court  at  various  times  thereafter 

202  In  People  v.  Sheriff  of  Chautauqua  County,  n  Civ.  Proc.  Rep.  (N. 
Y.)  172,  it  was  held  that  the  grand  jury  is  not  a  part  of  the  court  in  which 
it  is  drawn,  and  that  the  court  has  no  control  over  its  sittings  or  adjourn- 
ments. 

203  Supra.  28. 


164  THE    GRAND    JURY. 

endeavored  to  compel  juries  to  do  their  will  as  we  have  seen 
occurred  in  Pennsylvania,204  the  practice  of  punishing  them 
by  fine  or  imprisonment  for  refusal  to  act  in  accordance  with 
the  wishes  of  the  justices  was  brought  to  an  end  long  prior 
thereto  by  the  resolute  action  of  Sir  Hugh  Windham.205  In 
this  case  the  grand  jurors  refused  to  find  a  bill  for  murder  al- 
though they  were  satisfied  that  the  deceased  came  to  his  death 
at  the  hands  of  the  defendant.  The  chief  justice  thereupon 
fined  eleven  of  them,  among  whom  was  Sir  Hugh  Windham, 
and  bound  them  over  until  the  King's  Bench  should  determine 
the  matter.  The  court  relieved  them  of  the  fine  although 
holding  that  the  grand  jury  should  have  found  a  bill  for  mur- 
der. The  chief  justice  was  afterward  accused  in  Parliament 
by  Sir  Hugh,  and  was  obliged  to  acknowledge,  that  the  fining 
was  unlawful. 

That  the  grand  jury  from  that  time  has  been  absolutely  free 
from  the  control  of  the  court  in  their  findings,  there  can  be  no 
question,  and  Judge  King  said,206  when  discharging  a  prisoner 
upon  habeas  corpus  proceedings:  "I  rejoice  that  our  judg- 
ment is  not  conclusive  of  the  subject;  the  sole  effect  of  this 
decision,  is  that  in  the  present  state  of  the  evidence  we  see  no 
sufficient  cause  to  hold  the  defendant  to  bail.  It  is  still  com- 
petent for  the  proper  public  officer  to  submit  the  case  to  the 
grand  jury;  that  respectable  body  are  entirely  independent  of 
us;  they  may  form  their  own  view  of  the  prosecutor's  case, 
and  may  if  their  judgment  so  indicates,  place  the  defendant 
on  his  trial." 

But  aside  from  the  independence  which  they  possess  in  re- 
gard to  their  finding,  in  what  respect,  if  any,  are  they  inde- 
pendent of  the  control  of  the  court.  Dr.  Wharton  states  :207 
"When  the  grand  jury  are  in  session,  they  are  completely 
under  the  control  of  the  court,"  and  in  the  case  of  State  v. 


204  Francis  Hopkinson's  Works,  Vol.  i,  p.  194.    Supra.  31. 

205  King  v.  Windham,  2  Keble  180.    And  see  Bushel's  Case,  Vaughn  153;' 
2  Hale,  PI.  C.  158  et  seq. 

206  Com.  v.  Ridgway,  2  Ash.   (Pa.)  247. 

207  i  Whart.  Cr.  Law,  Sec.  506  (7th  ed.)  :    And  see  State  v.  Cowan,  i 
Head   (Tenn.)  280. 


ITS  RELATION  TO  THE  COURT. 

Cowan207*  the  court  said :  "The  grand  jury  are  under  the  con- 
trol of  the  court.  And  it  is  the  province  and  duty  of  the  court 
to  see  that  the  finding  is  proper  in  point  of  law ;  and  if  not,  the 
court  may  recommit  an  improper  or  imperfect  finding,  and 
may,  if  necessary,  exercise  the  power  of  compelling  a  proper 
discharge  of  duty  on  the  part  of  the  grand  jury." 

It  was  said  by  Judge  Parsons208  that  the  grand  jury  "have 
no  power  to  compel  the  appearance  of  a  witness,  none  to  attach 
him  for  contempt  should  he  refuse  to  testify,  and  even  on  bills 
pending  before  them,  it  became  necessary  to  pass  a  special  law 
to  authorize  them  to  swear  witnesses  endorsed  on  the  bills." 
While  they  are  thus  unable  to  take  any  legal  action  on  matters 
not  within  their  own  knowledge  except  with  the  assistance  of 
the  court,  the  court  cannot  compel  them  to  receive  the  witnesses 
subpoenaed,  and  while  it  may  recommit  to  them  an  imperfect 
finding,209  it  cannot  compel  them  to  alter  it  if  they  refuse. 

Within  their  own  room  they  are  supreme  in  their  action  ;210 
within  the  court  room,  they  are  subject  to  the  control  of  the 
judge  in  the  same  manner  as  any  other  officer  of  the  court,211 
but  even  in  the  court  room,  the  judge  has  no  authority  over 
the  grand  jurors  in  any  matter  which  is  in  their  discretion. 

In  Pennsylvania212  a  person  can  only  be  committed  for  con- 
tempt where  the  offence  is  actually  committed  in  the  presence 
of  the  court,  although  fines  may  be  imposed  for  contempts  not 
committed  in  open  court,  but  in  the  event  of  the  grand  jurors 
in  their  own  room  acting  contrary  to  the  instructions  of  the 
court  all  that  the  judge  could  do  would  be  to  discharge  the 
jurors  from  further  service. 

A  different  rule  prevails  in  the  Federal  courts,  for  the  judges 
may  commit  for  contempt  where  the  offence  was  not  committed 
in  their  presence.  Thus  in  Summerhayes  case213  the  court  sen- 

207*  i  Head   (Tenn.)   280. 

208  Com.  v.  Crans.,  2  Gark  (Pa.)  441. 

209  i  Whart.  Cr.  Law,  Sec.  506  (7th  ed.) ;  State  v.  Squire,  10  N.  H.  558; 
State  v.  Cowan,  i  Head  (Tenn.)  280. 

21  o  Allen  v.  State,  61  Miss.  627. 

211  U.  S.  v.  Kilpatrick,  16  Fed.  Rep.  765. 

212  Act  June  16,  1836,  P.  L.  23. 

213  In  re  Summerhayes,  70  Fed.  Rep.  769. 


l66  THE   GRAND   JURY. 

tenced  a  grand  juror  to  six  months  imprisonment  for  contempt 
in  disregarding  his  oath  and  the  instructions  of  the  court  by 
revealing  to  persons  outside  the  grand  jury  room  matters 
which  had  transpired  therein,  relating  to  such  persons.  And 
in  Ellis'  case214  on  motion  of  the  prosecuting  attorney,  the 
court  fined  Ellis,  who  was  foreman  of  the  grand  jury,  thirty 
dollars,  discharged  him  from  the  grand  jury  and  ordered  that 
execution  issue  to  collect  the  fine. 

A  different  and  rather  better  view  was  taken  by  the  court 
of  King's  Bench215  which  refused  to  attach  a  grand  juror  for 
certain  acts  done  by  him  while  acting  in  his  official  capacity, 
although  they  will  attach  one  who  had  been  a  grand  juror  for 
acting  as  such  after  he  has  been  dismissed. 

The  grand  jury  has  jurisdiction  over  its  own  members  for 
any  presentable  offence  which  may  be  committed  by  a  grand 
juror  while  acting  as  such.  Thus  in  Pennsylvania  the  grand 
jurors  presented  one  of  their  number  for  drunkenness,  he  being 
present  in  the  grand  jury  room  in  a  drunken  condition  and 
sleeping  by  the  fire  while  the  inquest  performed  its  duties,  and 
the  court  held  the  presentment  proper  if  the  jury  believed  the 
drunkenness  to  have  been  voluntary.216 

Unlike  the  private  prosecutor  a  grand  juror  comes  ordinarily 
unwillingly  in  obedience  to  the  command  of  the  law  to  act  as  an 
official  accuser.  If,  while  so  acting,  he  should  disregard  his 
oath  and  maliciously  procure  the  indictment  of  any  person  or 
persons  for  some  alleged  offence,  the  law  affords  no  redress  to 
the  person  whom  he  has  wronged.  No  inquiry  can  be  made  as 
to  what  he  said  or  how  he  voted ;  the  veil  of  secrecy  surround- 
ing the  acts  of  grand  jurors  presents  a  most  complete  barrier 
to  any  investigation  into  the  motive  which  inspired  his  action. 
Even  though  it  were  possible  to  make  such  investigation,  con- 
siderations of  public  policy  would  require  that  no  action  should 
be  maintained  against  a  grand  juror  for  any  act  done  in  his 
official  capacity.  The  fact  that  he  was  liable  to  answer  to  a  de- 

214  In  re  Ellis,  8  Fed.  Cas.  548. 

215  King  v.  Baker,  Rowe's  Rep.  of  Interesting  Cases,  603. 

216  Penna  v.  Keffer,  Add.  290. 


ITS  RELATION  TO  THE  COURT.  l6/ 

fendant  for  his  official  acts,  would  operate  as  a  powerful  deter- 
rent to  finding  a  true  bill  in  many  cases.  The  law,  therefore,  af- 
fords a  grand  juror  the  most  unqualified  indemnity  for  his  of- 
ficial acts.  "During  the  whole  of  their  proceedings  the  grand 
jury  are  protected  in  the  discharge  of  their  duty  and  no  action 
or  prosecution  can  be  supported  against  them  in  consequence 
of  their  finding,  however  it  may  be  dictated  by  malice,  or 
destitute  of  probable  foundation."217 

217  I  Chitty  Cr.  Law  323.  And  see  Floyd  v.  Barker,  12  Co.  23; 
Johnstone  v.  Sutton,  i  Term  Rep.  513-14;  Turpen  v.  Booth,  56  Calif.  65; 
Thornton  v.  Marshall,  92  Ga.  548;  Hunter  v.  Mathis,  40  Ind.  356;  Rector  v. 
Smith,  1 1  Iowa  302 ;  Ullman  v.  Abrams,  72  Ky.  738 ;  Griffith  v.  Slinkard,  44 
N.  E.  1001.  In  Scarlett's  Case,  12  Co.  98,  a  grand  juror  was  indicted,  con- 
victed and  sentenced  for  maliciously  causing  seventeen  innocent  persons 
to  be  indicted.  And  see  Poulterer's  Case,  9  Co.  55b.  But  this  could 
not  be  done  at  the  present  day  by  reason  of  the  policy  of  the  law  not  to 
permit  any  grand  juror  to  testify  what  any  member  of  the  jury  had  said 
or  how  he  voted.  In  Allen  r.  Gray,  n  Conn.  95,  it  was  held  that  where 
process  issues  on  complaint  of  a  grand  juror  for  an  offence  of  which  he  is 
not  cognizant,  he  is  liable  in  trespass. 


INDEX 

The  references  are  to  pages. 
ABATEMENT 

objections  to  indictment  made  by  plea  in,  86. 

two  or  more  pleas  in,  may  be  filed,  86. 

when  plea  in  sustained,  80. 

plea  of  sustained  where  initials  of  defendant  used,  152. 

objections  made  by  plea  of,  in  England,  84. 

neglect  to  challenge,  not  ground  for  plea  in,  71. 

relationship  as  ground  for  plea  in,  81. 
ABOLITION  OF  GRAND  JURY,  35. 

Arguments  pro  and  con,  35. 

opinion  of  Daniel  Davis,  36. 

English  view,  38,  39. 

American  view,  40. 

in  Western  States,  44. 
ABSENCE 

of  officer  when  selection  made,  58. 
ACCOMPLICE 

indictment  found  on  uncorroborated  evidence  of,  144. 
ACCUSE 

duty  of  thanes  to,  3. 
ACCUSED 

asks  instructions  to  grand  jury,  126. 
ACCUSING  BODY.    AND  SEE  ACCUSING  INQUEST. 

known  as  inquest  or  jury,  2. 

unknown  to  Normans,  4. 

number  composing,  6,  23,  24. 

its  slow  growth,  5. 

importance  promoted  by  appeal,  7. 

reading  articles  to,  20. 

presentment  by,  10,  n,  21. 

failure  of,  to  present,  13. 

indictment  by,  22,  24. 

disappearance  of  in  hundred,  27. 
ACCUSING  INQUEST.    AND  SEE  ACCUSING  BODY. 

scope  of,  10. 

duty  to  accuse,  3. 

to  answer  capitula  fully,  1 1. 

secrecy  observed  by,  21,  27. 

knowledge  of,  as  to  offenders,  1 1. 

169 


INDEX. 
The  references  are  to  pages. 

ACTION 

against  grand  juror,  when  maintainable,  166. 
ACTS 

presumption  of  regularity  of  official,  59. 

accused  may  take  advantage  of  irregular,  64. 

wrongful,  of  grand  jurors,  166. 
ADDISON,  JUDGE, 

charges  to  grand  juries,  101,  124,  131,  141. 
ADJOURNMENT 

of  grand  jury  from  time  to  time,  160. 
AFFIDAVIT 

when  necessary  to  sheriffs  return,  54. 

in  support  of  challenge  to  array,  68. 
AFFINITY 

grand  jurors  related  to  accused  by,  81. 
AFFIRMATION.    AND  SEE  OATH. 

of  grand  jurors,  91,  137. 
AFFORCIAMENT 

when  employed,  24. 
AGE  OF  GRAND  JURORS 

exemption  by  reason  of,  72. 
ALABAMA 

oath  of  grand  juror  in,  95n. 

investigation  of  sufficiency  of  official  bonds,  122. 

endorsement  of  prosecutor's  name,  136. 
ALIEN 

not  a  competent  grand  juror,  60,  63,  77. 

cannot  demand  grand  jury  de  medietate  linguae,  64. 
AMENDMENT 

of  writ  of  venire,  48. 

of  sheriffs  return,  50. 

of  record  nunc  pro  tune,  93. 

of  indictment,  154,  155. 

Fifth,  to  Constitution  of  United  States,  32,  131. 
applies  solely  to  offences  against  United  States,  33. 
does  "not  apply  to  Cherokee  Nation,  33n. 

Sixth,  to  Constitution  of  United  States,  57. 

Fourteenth,  to  Constitution  of  United  States,  33,  66. 
does  not  prevent  states  from  prosecuting  by  information,  33. 
gives  white  man  no  additional  rights,  67. 
AMERCEMENT 

of  hundred  for  escape  of  offender,  4. 
AMERCERS 

pledges  taken  by,  20. 


INDEX.  171 

Tbe  references  are  to  pages. 

AMERICA 

grand  jury  brought  to,  in  settlement  of,  31. 
civil  rights  become  strongly  developed  in,  32. 
modern  view  of  grand  jury  in,  40. 

AMICUS  CURIAE 

challenge  by  attorney  as,  71. 

ANCIENT 

oath  of  grand  jury,  20,  92,  98. 

grand  jury,  powers  of,  broader  than  modern,  99. 

ANGLO-SAXON 

origin  of  grand  jury,  2. 
sectatores,  3. 

APPEAL 

a  Norman  institution,  3. 

rise  of  the,  9,  10. 

a  personal  action,  9. 

cognizable  in  the  King's  Court,  9. 

prosecution  of,  13. 

promotes  importance  of  accusing  body,  7. 

how  made,  12. 

exceptions  to,  17,  21. 

trial  by  country  when  woman  makes,  21. 

APPELLEE 

may  elect  between  battle  and  ordeal,  10,  12. 

battle  and  country,  21. 
right  to  decline  battle,  17. 
could  not  retract  after  choice  made,  21. 

APPELLOR 

enrolment  of  complaint,  12. 
hearing  of,  12. 

reading  of  coroner's  rolls,  12. 
hearing  before  justices  in  eyre,  12. 

APPOINTMENT  OF  FOREMAN.    SEE  FOREMAN. 

ARIZONA 

oath  of  grand  juror  in,  980. 

ARKANSAS 

qualifications  of  grand  jurors,  62. 
excusing  grand  jurors,  presumption  of,  85. 
oath  of  grand  juror,  96n. 
endorsement  of  prosecutor's  name,  135. 

ARMORIES 

workmen  in,  exempt  from  jury  service,  73. 


172  INDEX. 

The  references  are  to  pages. 

ARRAY 

objections  to,  65. 

motion  to  quash,  when  not  sustained,  67. 
if  quashed,  tales  not  to  issue,  52. 
challenge  to,  must  be  substantiated  by  oath,  68. 
causes  of,  66. 
when  made,  68,  85. 
how  made,  70. 
in   Federal   Courts,  69,  85. 
ARREST 

indictment  found  without  previous,  114. 
ARREST  OF  JUDGMENT.  SEE  JUDGMENT. 
ARSENALS 

workmen  in,  exempt  from  jury  service,  73. 
ARTICLES  OF  INQUIRY,  11. 

reading  of  to  accusing  body,  20. 
ASHFORD  vs.  THORNTON,  wager  of  battle,  13. 
ASSENT 

of  grand  jury  to  amendment  of  indictment,  154. 
ASSIZE 

writs  awarding,  17. 
of  Clarendon,  7,  8,  n,  14,  17,  18. 
its  provisions,  7. 

offenders  to  be  tried  by  ordeal,  7. 
itinerant  courts  created  by,  7. 
four  townspeople  referred  to  in,  7,  23. 
marks  important  change  in  law,  7. 
implied  prohibition  of,  8. 
Prof.  Thayer  on,  18. 
of  Northampton,  7,  u,  17. 
provisions  of,  9. 

divided  kingdom  into  six  circuits,  8,  9. 
ASYLUMS 

investigation  into,  121. 
ATHENIANS, 

existence  of  juries  among,  i. 
ATTACHMENT, 

to  compel  attendance  of  witnesses,  133. 
of  grand  juror  for  misconduct,  166. 
ATTENDANCE. 

of  grand  jurors,  differences  in  statutes  requiring,  47. 
at  time  fixed  by  statute,  48. 
before  and  after  regular  term,  54. 
immaterial  how  procured,  54. 
after  jury  empaneled  and  sworn,  51. 
of  improper  person,  49,  139. 


INDEX.  173 

The  references  are  to  pages. 

ATTENDANCE— Continued. 

in   Pennsylvania,  52. 
in  Federal  Courts,  55. 
in   England,  57. 
of  witnesses,  grand  jurors  cannot  compel,  104. 

how  procured,   132. 
ATTORNEY  GENERAL 

authority  of,  to  prefer  indictment,  107,  in. 
acting  without  leave  of  court,  ill. 
cannot  stipulate  what  the  evidence  is,  I2on. 
moves  to  expunge  presentment  in  Georgia,  160. 
for  the  crown,  authority  of,  113. 
AUTHORITY 

of  attorney  general  for  the  crown,  113. 
of  district  attorney  to  prefer  indictment,  107,  no. 
of  ancient  grand  jury  broader  than  modern,  99. 
of  grand  jury,  limitation  upon  in  time  of  Cromwell,  99. 
differences  in  extent  of,  102,  109. 
Chief  Justice  Chase  on,  102. 

to  inquire  into  all  offences  within  jurisdiction,  103. 
restraint  upon,  102,  165. 
to  punish  witnesses,  104,  165. 
inquisitorial,  of  grand  jury,   104. 
devolving  upon  grand  jurors  by  statute,  121. 
to  administer  oath  to  witnesses,  137,  165. 
grand  jurors  exceed,  in  making  report,  157. 
of  court  over  grand  jurors,  163. 
delegation  of,  by  officer,  58. 
of  de  facto  officers,  58. 
AWARD 

of  writ  of  inquest  in  real  actions,  17. 
BAILIFF 

inquest  summoned  by,  2. 
inhabitants  of  hundred  enrolled  by,  20. 
BALWIN,  JUDGE,  Rector  v.  Smith,  159. 
BANISHMENT,  9. 
BATTLE 

wager  of,  3,  6,  7,  10,  21. 
trial  by,  rise  of,  9. 

last  instance  of,  13. 
exceptions  to,  17,  21. 
when  awarded  or  refused,  10. 
appellee's  election  between  ordeal  and,  10. 
right  to  choose,  21. 
right  to  decline,  17. 
appeals  of  felony,  21. 
in  real  actions,  17. 


174  INDEX. 

The  references  are  to  pages. 

BENTHAM 

secrecy  in  grand  juror's  oath,  116. 
BIAS  OF  GRAND  JUROR.    SEE  FAVOR. 
BIENNIAL  VISIT  OF  SHERIFF,  5. 
BIGAMY.    SEE  POLYGAMY. 
BILL.    SEE  INDICTMENT;  TRUE  BILL. 
BILLA  VERA,  147. 

se  defendo,  148. 

BLACKSTONE,  SIR  WILLIAM 
view  of  leet  and  tourn,  5. 
on  qualification  of  grand  jurors,  61. 
powers  of  attorney  general  for  the  crown,  113. 
BOOKS  AND  PAPERS 

production  of,  how  procured,  133. 
relevancy  of,  133,  143. 
BOROUGH 

incorporation  of,   121. 

court  will  not  review  facts  as  to,  121. 
BRACTON 

four  freeman  of  every  vill,  15. 

no  part  of  inquest,  15. 
institution  of  prosecutions,  19. 
indictment  by  grand  jury,  24. 
grand  jurors,  qualifications  of,  60,  62. 
oath  of,  20,  98,  1 1 6. 
wholly  under  control  of  court,  i6». 
trial  by  jury,  21. 

proceedings  before  petit  jury,  22. 
peremptory  challenges  not  known,  75. 
oath  of  petit  jurors,  22. 
BRADFORD,  ATTORNEY  GENERAL 

powers  of  grand  jury,  100. 
BRANCH'S  CASE 

evidence  heard  in  public,  117. 

BREWER,  MR.  JUSTICE.    Case  of  In  re  Wilson,  47. 
BRIDGES 

presentment  of  inquest  in  relation  to,  25,  121. 
appropriations  for,  I27n. 
BRITTON 

grand  jury  in  time  of,  25. 

oath  of,  25,  99,  116. 
duties  of,  25. 

wholly  under  control  of  court,  163. 
peremptory  challenges  not  known,  75. 
BROWN  vs.  STATE,  administration  of  oath,  92. 
BRYAN,  JUDGE,  Oswald's  case,  31. 


INDEX.  175 

The  references  are  to  pages. 

BURR,  AARON,  TRIAL  OF. 

challenge  for  favor,  74,  82. 

supplemental  charge  to  grand  jury,  125. 
BUSONES 

called  by  itinerant  justices,  20. 
BYSTANDERS 

selection  of  talesmen  from,  50. 

Federal  grand  jurors  not  selected  from^  55. 

talesman  chosen  from,  appointed  foreman,  gon. 
CALIFORNIA 

grand  jury  in,  44. 

oath  of  grand  juror,  970. 
CAPITAL  CRIME.    SEE  INFORMATION. 
CAPITAL  PUNISHMENT 

conscientious  scruples  against,  76. 
CAPITULA  or  articles  of  inquiry,  11. 

inquest  to  answer  fully,  n. 

reading  of,  99. 
CASE  OF 

Aaron  Burr,  74,  82,  125. 

Ashford  v.  Thornton,  trial  by  battle,  13. 

Branch,  evidence  heard  in  public,  117. 

Brown  r.  State,  administration  of  oath,  92. 

College,  Stephen,  ignoramus,  28. 

Conu  v.  Crans,  approaching  grand  juror,  162. 

v.  English,  authority  of  district  attorney,  ill. 
v.  Knapp,  list  of  witnesses,  136. 
v.  Morton,  talesmen,  54. 

Crowley  v.  United  States,  disqualification  of  grand  juror,  74. 

Ellis,  disregarding  oath,  166. 

Ex  Parte  Bain,  altering  indictment,  155. 

Hardy,  attendance  of  crown  solicitor,  127. 

In  re  Wilson,  lawful  grand  jury,  47i  56. 

Jillard  v.  Com.,  swearing  witnesses,  138, 

Lewis,  standing  jurors  aside,  83. 

Oswald,  coercion  of  grand  jury,  31. 

People  v.  Petrea,  de  facto  grand  jury,  58. 

Rector  v.  Smith,  libellous  report  of  grand  jury,  158. 

Rex  v.  Dickinson,  witnesses  not  sworn,  139. 

Rowand  v.  Com.,  second  bill  sent  to  grand  jury,  112. 

Scarlett,  unlawfully  procuring  indictments,  42,  117. 

Shaftesbury,  ignoramus,  29,  117,  129. 

Sheridan,  challenge,  75. 

State  v.  Cowan,  control  of  court  over  grand  jury,  165. 

Summerhayes,  contempt  of  court,  165. 

Windham,  fining  grand  jurors,  164. 

Zenger,  ignoramus,  32. 


176  INDEX. 

The  references  are  to  pages. 

CAUSE 

challenge  for,  69,  77,  8211. 

individual  jurors  may  be  challenged  for,  70. 

to  be  shown  on  challenge  for  favor,  74. 
CAUSEWAYS 

presentment  of  inquest  in  relation  to,  25. 
CHALLENGE 

error  to  refuse  right  of,  65. 

legislature  cannot  take  away  right  of,  70. 

defendant  must  demand  right  to,  71. 

to  array,  66,  68. 

when  made,  68,  85. 

must  be  substantiated  by  affidavit,  68. 

state's  attorney  cannot  challenge  panel,  70. 

peremptory,  'not  allowed,  75,  82. 

unknown  in  time  of  Bracton  and  Britton,  75. 

for  favor,  70,  73,  74,  76,  77,  82. 
how  determined,  82. 

to  be  made  before  grand  juror  sworn,  74. 
where  opinion  formed  and  expressed,  76. 
upon  ground  of  relationship,  80. 
examination  on  voir  dire  not  permitted  on,  81. 

of  grand  juror  for  cause,  69,  77,  82. 
how  made,  70. 
by  whom  made,  71. 
absence  from  domicile,  81. 

made  and  withdrawn  cannot  be  assigned  for  error,  70. 

exclusion  of  grand  juror  on,  72. 

when  not  allowed  in  Iowa,  70. 

in  Federal  Courts,  69. 

Federal  grand  jury  depleted  by,  55. 

of  petit  jurors  for  cause,  23,  25. 
CHARGE  OF  THE  COURT 

when  made,  124. 

as  means  of  communication  with  public,  124. 

effect  of  omission  of,  I24n. 

supplemental,  when  given,  125. 

at  whose  request  made,  125. 

in  Aaron  Burr's  case,  125. 

Judge  Cranch's  view,   126. 

when  inflammatory,  126. 

delivered  by  Chief  Justice  Shaw,  43. 

CHARGES  TO  GRAND  JURIES,  Judge  Addison's,  101,  124. 
CHARLES  II,  attack  on  grand  jury,  28,  31. 
CHASE,  CHIEF  JUSTICE,  powers  of  grand  jury,  102. 


INDEX.  177 

The  references  are  to  pages. 

CHEROKEE  NATION 

powers  of,  not  affected  by  Constitution,  33n. 
CHITTY,  qualifications  of  grand  jurors,  60. 
CHOOSING  GRAND  JURY,  20. 

CHRISTIAN,  MR,  secrecy  in  grand  juror's  oath,  116,  118. 
CIRCUITS 

division  of  kingdom  into  six,  8,  9. 
CIVIL  CAUSES 

only  considered  by  sectatores  and  nambda,  3. 
CIVIL  RIGHTS 

brought  to  America  by  Englishmen,  31. 

become  strongly  developed,  32. 
CLARENDON,  ASSIZE  OF,  7,  8,  n,  14,  17,  18. 

its  provisions,  7. 

offenders  to  be  tried  by  ordeal,  7. 

marks  important  change  in  law,  7. 

itinerant  courts  created  by,  7. 

implied  prohibition  of,  8. 

four  townspeople  referred  to  in,  7,  23. 

Prof.  Thayer  on,  18. 
CLARK,  MR.  JUSTICE,  129. 
CLERGY 

forbidden  to  participate  in  ordeal,  18. 
CLERICAL  ERRORS  IN  INDICTMENT,  154. 
CLERK 

of  grand  jury,  how  selected,  91. 

not  to  disclose  secrets,   120. 
signing  name  of  foreman,  I48n. 

of  court  to  swear  witnesses,  137. 

to  record  finding,  156. 
COERCION 

of  grand  jury  in  College's  Case,  28. 

in  Shaftesbury's  Case,  29. 

in  Pennsylvania,  31. 

in  Mississippi  in  1902,  310, 

affidavits  of  grand  jurors  received  to  show,  119. 

of  sheriffs  in  return  of  grand  jury  panel,  30. 
COKE,  LORD 

views  of  on  origin  of  number  of  grand  jury,  6. 

on  evils  of  grand  jury  system,  41. 

comment  on  unlawful  grand  jurors,  60. 
COLLATERAL  PROCEEDINGS 

objections  to  irregularity  cannot  be  raised  in,  88. 

attack  on  order  of  discharge,  162. 
COLLEGE,  STEPHEN,  Case  of,  28. 
COLORADO 

oath  of  grand  juror  in,  97n. 

12 


178  INDEX. 

The  references  are  to  pages. 

COMMISSION 

oath  of  grand  juror  as  his,  94. 
COMMISSIONERS.    SEE  JURY  COMMISSIONERS. 
COMMITMENT  OF  WITNESSES,  i32n. 
COMMITTING  MAGISTRATE.    SEE  MAGISTRATE. 
COMMON  FAME.    SEE  PUBLIC  FAME. 
COMMON  LAW 

Statute  of  Ethelred  declaratory  of,  5. 

disqualification  imposed  by,  73. 

right,  challenge  'for  favor  a,  74. 

examination  of  witnesses  by  grand  jurors,  127. 

method  of  swearing  witnesses,  137. 
COMMONWEALTH 

v.  Crans.    Approaching  grand  juror,  162. 

v.  English.     Power  of  district  attorney,  in. 

v.  Knapp.    List  of  witnesses,  136. 

v.  Morton.    Talesmen,  54. 

v.  Sheppard.    Authority  of  district  attorney,  114. 
COMMUNICATION 

with  grand  jury  forbidden  except  through  court,  103,  i6z 

sent  to  grand  jury  by  court,  126. 

privileged,  143,  159. 

report  of  grand  jury  not  a  privileged,  159. 
COMPETENCY  OF  GRAND  JUROR 

challenge  to  array  does  not  extend  to,  68. 

when  objection  waived,  72. 

age  as  affecting,  72. 

restored  before  service,  76. 

opinion  as  affecting,  80. 

relationship  as  affecting,  80. 

COMPLAINT  OF  APPELLOR,  enrollment  of,  12. 
COMPURGATION 

trial  by,  4. 

disappearance  of,  in  criminal  cases,  8. 
CONCEALMENT,  of  proceedings  by  inquest,  21. 
CONCURRENCE 

of  twelve  grand  jurors  to  find  bill,  26,  56,  108,  147. 

when  grand  juror  may  testify  as  to,  119. 
CONNECTICUT 

forfeiture  by  grand  juror  in,  I2n. 

oath  of  grand  juror  in,  9511. 

defendant  may  appear  before  grand  jury  in,  103. 

town  meeting  chooses  grand  jurors  in,  122. 
CONSANGUINITY 

gra'nd  jurors  related  to  accused  by,  81. 


INDEX.  179 

The  references  are  to  paces. 

CONSCIENTIOUS  SCRUPLES 

against  capital  punishment,  76. 
against  taking  oath,  gin. 
CONSERVATIVE  VIEW  of  Grand  Jury,  43- 
CONSTITUTION 

of  United  States  omits  grand  jury,  32. 

remedied  by  Fifth  Amendment,  32,  132. 
Fourteenth  Amendment  to,  33. 
does  not  affect  powers  of  Cherokee  Nation,  330 
of  Pennsylvania,  33. 

declaration  of  rights  in,  34. 
CONTEMPT 

witness  refusing  to  testify  in,  88,  133. 
when  witness  not  in,  121,  133. 
when  grand  juror  in,  165. 
CONTROL  of  Court  over  grand  jurors,  163. 
CONTINUANCE  OF  FRANK  PLEDGE  under  the  Normans,  6. 
CONVICTION 

evidence  to  justify,  102,  105,  141. 
CORONER 

duty  to  enrol  appellor's  complaint,  12. 
rolls  of,  when  read,  12. 

disagreement  in,  12. 

when  member  of  jury  disqualified  as  grand  juror,  80. 
to  summon  grand  jurors  when  sheriff  disqualified,  59. 
CORSNED,  trial  by,  4. 
COUNT 

finding  as  to  one  or  more,  147. 
finding  as  to  part  of,  void,  147. 
COUNTRY,  TRIAL  BY  THE.    See  Trial  by  Jury. 
COUNTY  ATTORNEY,  I27n,  I28n. 
COUNTY  BRIDGE,  grand  jury  to  authorize,  121. 
COURT, 

suitors  of  the,  3. 

interrogation  of  grand  jury  by  the,  21,  27,  116. 
order  or  precept  issued  by,  48. 
seal  of,  48. 

may  order  signing  of  sheriff's  return,  49. 
orders  summoning  of  talesmen,  50. 
not  to  furnish  names,  51. 

implied  power  of  to  summon  grand  jurors,  52. 
grand  jury,  summoned  prior  to  regular  term  of,  54. 

detention  after  expiration  of  term  of,  54. 
may  not  arbitrarily  remove  grand  juror,  84. 
may  excuse  grand  juror,  84. 
unfavorable  to  technical  objections,  86. 


ISO  INDEX. 

The  references  are  to  pages. 

COURT— Continued. 

illegally  impaneling  grand  jury,  89. 

foreman  appointed  by,  90. 

matters  given  in  charge  of  grand  jury  by,  101,  106. 

to  order  additional  testimony  produced,  104. 

district  attorney  to  obtain  leave  of,  in,  115. 

hearing  of  evidence  in  open,  117,  127,  163. 

contempt  of,  121,  165. 

charges  grand  jury  when,  124. 

when  grand  jury  in,  130. 

swearing  witnesses  in  open,  137. 

will  not  inquire  as  to  sufficiency  of  evidence,  146. 

findings  not  read  in  open,  156. 

how  indictments  brought  into,  156. 

relation  of  grand  jury  to,  163. 
COURT  LEET,  5,  8. 
COURT  ROLLS  of  the  eyres,  11,  24. 
COURTS,  ITINERANT.     SEE  ITINERANT  COURTS. 
CRABB 

on  question  whether  grand  jury  also  tried  offenders,  22. 
CRANCH,  JUDGE,  supplemental  charge,  126. 
CRIMINAL  CASES 

disappearance   of   compurgation   in,   8. 

petit  jury  in,  10. 
CRIMINAL  PLEAS 

not  considered  by  nambda,  3. 
CRIMINATE 

where  testimony  of  witness  will  tend  to,  133. 
CROMWELL,  OLIVER,  oath  in  time  of,  99. 
CROWLEY  vs.  UNITED  STATES.    R.  S.  U.  S.  Sec.  1025,  74. 
CROWN 

growth  of  influence  of,  8. 

pleas  of,  administered  by  itinerant  justices,  8. 

authority  of  attorney  general   for,   113. 
CRY,  HUE  AND,  4,  12. 

CURIA  REGIS,  sheriff  selected  from  justices  of,  8. 
CUSTOM 

as  to  number  of  grand  jurors,  6. 

grand  jury  a  growth  of,  26. 

of  weregild,  4. 

disuse  of,  9. 
DATE 

of  finding  bill,  endorsement  of,   151. 

of  filing  bill,  endorsement  of,   157. 


INDEX.  l8l 

The  references  are  to  paces. 

DAVIS.  DANIEL 

opinion  on  grand  jury,  36. 

condemns  grand  jury  reports,  158. 

re-assembling  grand  jury  after  discharge,  161. 
DECLARATION  OF  RIGHTS  (PA.),  34- 

DE  FACTO 

officers,  authority  of,  58. 

grand  jury,  58. 
DEFECT 

what  is,  within  meaning  of  R.  S.  U.  S.  Sec.  1025,  74. 

appearing  on  face  of  indictment,  ground  for  demurrer,  86. 

cannot  be  attacked  in  collateral  proceeding,  88. 

in  record,  may  be  amended,  93. 

in  indictment  may  be  amended,  154 
DEFECTIVE  PROCEEDINGS 

when  cured  by  plea,  56. 
DEFENDANT 

presence  of,  when  evidence  heard,  103,  140. 

tampering  with  witnesses,  143. 

voluntarily  testifying  before  grand  jury,  144. 

compelled  to  testify  against  himself,  145. 

found  to  be  insane,  148. 

initials  of,  used  in  bill,  152. 

held  in  bail  after  ignoramus,  153. 
DEFICIENCY 

in  number  of  grand  jurors,  51,  55. 
DELIBERATIONS  OF  GRAND  JURY 

to  be  private,  28,  29,  119. 

presence  of  district  attorney  during,  128. 

unauthorized  person,  139 
DE  MEDIETATE  LINGUAE,  64. 
DEMURRER 

filed  when  defect  on  face  of  indictment,  86. 

cannot  be  sustained  for  omission  of  prosecutor's  name,  13511. 
DEPOSITIONS 

of  witnesses,  when  received,  143. 

DEVELOPMENT  OF  GRAND  JURY  in  time  of  Edward  III,  26. 
DILIGENTLY  INQUIRE 

duty  of  grand  jury  to,  101,  105. 

meaning  of  in  Pennsylvania,  101. 
DIRECTORY 

statutory  provisions  held  to  be,  49,  81,  136. 

statute,  grand  jurors  irregularly  drawn  under,  57. 

provisions  for  filing  are  generally,  157. 
DISAGREEMENT  of  Coroner's  Rolls,  12. 


I 82  INDEX. 

The  references  are  to  pages. 

DISAPPEARANCE 

of  compurgation  in  criminal  cases,  8. 

of  accusing  bodies  of  hundreds,  27. 
DISCHARGE 

of  grand  juror  for  cause  by  the  court,  84. 

of  grand  jury  presumed,  89,  160. 

illegally  empaneled,  89. 
for  contempt  of  court,   165. 
upon  completion  of  duties,  160. 
reassembling  after,  160. 

collateral  attack  on  order  of,  162. 

of  foreman  presumed,  91. 
DISCLOSURE 

of  evidence,  when  to  be  made,  118. 

of  proceedings,  162. 

of  how  juror  voted,  119. 

of  knowledge  to  fellow  jurors,  132. 
DISQUALIFICATION 

of  Federal  grand  jurors,  63,  69,  73. 

and  exemption,  distinction  between,  72. 

imposed  by  statute  or  common  law,  73. 

ruling  in  Crowley  v.  United  States,  74. 

absence  from  domicile  as  a,  81. 

religious  belief  not  a,  81. 

of  grand  juror  cured  before  service,  76. 

of  foreman,  90. 

DISQUALIFIED  PERSON,  presence  of  one  will  vitiate  indictment,  87. 
DISTRICT 

Federal  grand  jurors  selected  from  body  of,  55. 

summoned  from  part  of,  56. 
DISTRICT  ATTORNEY 

improperly  excludes  grand  juror,  84. 

gives  matters  in  charge  of  grand  jury,  101,  107,  no. 

cannot     permit    defendent's    witnesses    to    appear    before     grand 
jury,  103,  141. 

may  summon  additional  witnesses,  104. 

private  prosecutor  to  complain  to,  109,  162. 

to  obtain  leave  of  court,  in,  115. 

bill  to  be  earmarked,  114. 

authority  of,  in  Pennsylvania,  130. 

to  sign  indictment,  134. 

hands  indictments  to  foreman,  134. 

attends  grand  jury,   127. 

to  conduct  examination  of  witnesses,  139. 

not  to  express  opinion  to  grand  jury,  142. 


INDEX.  183 

Tbe  references  are  to  paces. 

DISTRICT  ATTORNEY-C0*i/mi*rf. 

presence  during  deliberations,  128. 

indictments  sent  into  court  by,  156. 

may  enter  nolle  pros,  142. 

may  not  testify,  when,  120. 

stenographer  as  assistant  to,  139. 
DISUSE  OF  WEREGILD,  9. 
DIVERSE  VIEWS, 

as  to  origin  of  grand  jury,  I. 

as  to  utility  and  abolition  of  grand  jury,  35. 
DOCUMENTS.    SEE  BOOKS  AND  PAPERS. 
DOMICILE 

when  absence  from  will  disqualify,  81. 
DRAWING.    SEE  SELECTION. 
DRUNKENNESS  OF  GRAND  JUROR,  166. 

DUE  PROCESS  OF  LAW,  33- 

defined  in  Hurtado  v.  California,  no  U.  S.  516,  39n. 
DUTY 

of  twelve  thanes  to  accuse,  3. 

of  accusing  body  to  present  offenders,  II. 

of  king's  sergeants  to  enroll  appellor's  complaint,  12. 

of  coroner  to  enroll  appellor's  complaint,  12. 
EARL  OF  SHAFTESBURY'S  CASE,  29. 
EASTERN  STATES 

conservatism  of,  on  grand  jury,  44. 
EDWARD  III 

and  rise  of  grand  jury,  2. 

development  of  grand  jury  in  time  of,  26. 
ELECTION 

by  appellor  between  battle  and  ordeal,  10. 
ELECTOR.    SEE  VOTER. 
ELLIS'  CASE,  disregarding  oath,  166. 
EMPANELED 

when  grand  jurors  are,  88,  89. 

grand  jury  may  be,  at  any  time  during  term,  88. 

when  grand  jury  illegally,  discharge  of,  89. 

may  investigate  offence  committed  after  being,  103. 
EMPANELING 

irregularity  in,  68,  8sn,  89. 

witness  must  testify  although,  88. 

objections  to  grand  jurors  before,  64n,  69n,  8sn. 

talesmen  may  be  added  after,  51. 

record  must  show,  89. 

after  new  statue  prescribes  different  method,  89. 


184  INDEX. 

The  references  are  to  pages. 

ENDORSEMENT 

on  bill,  not  evidence  of  empaneling,  89. 
of  names  of  witnesses,  135. 
of  name,   of  prosecutor,  135. 
of  finding,  146,  148,  151. 
of  date  of  finding,  151. 
of  date  of  filing,  157. 
effect  of,  when  printed,  151. 

parcel  of  indictment,  150. 

sufficiency  of,  150. 

manner  of,  when  directed  by  statute,  151. 
ENGLAND 

selection  and  summoning  grand  jurors,  57. 

court  cannot  order  grand  juror  to  withdraw,  84. 

evidence  upon  which  bill  found,  105. 

when  new  bill  sent  to  subsequent  grand  jury,  152. 

modern  view  of  grand  jury  in,  38. 

grand  jury  brought  to  America,  31. 
ENROLMENT 

of  appellor's  complaint,  12. 
ERROR 

in  venire,  49. 

in  returning  bill,  I47n. 
ESCAPES 

from  gaol,  inquiry  by  inquest  into,  25. 
ETHELRED  II. 

law  of,  2,  3. 

declaratory  of  common  law,  5. 
ordained  as  frith-bot,  6. 

oath  in  time  of,  98. 
EVIDENCE 

challenge  to  array  to  be  supported  by,  68. 

of  appointment  of  foreman,  90. 

of  formation  of  opinion  not  clear,  78. 

of  prosecution  only  to  be  heard,  103. 

presence  of  defendant  at  hearing  of,  103,  140. 

grand  jurors  may  demand  production  of  additional,  104. 

incompetent,  not  to  be  heard,  142. 

hearsay  and  irrelevant,  not  to  be  received,  142. 

uncorroborated,  of  accomplice,  144. 

which  tends  to  incriminate,  133. 

production  of  books  and  papers  as,  133. 

grand  jurors  governed  by  ordinary  rules  of,  142. 

presentment  after  hearing,  105. 

to  justify  finding  true  bill,  102,  105,  141. 

grand  jury  to  determine  sufficiency  of,  142. 


INDEX.  185 

The  references  are  to  paces. 

EVIDENCE— Continued. 

sufficiency  of,  146. 

to  be  heard  or  indictment  void,  132,  155. 

when  not  to  be  revealed,  118. 

attorney  general  cannot  stipulate  as  to,  izon. 

hearing  of,  in  open  court,  117,  127,  163. 

record  offered  in,  119. 
EXAMINATION 

of  witnesses  by  district  attorney,  139. 
EXCEPTIONS  TO  APPEAL,  17,  21. 
EXCLUSION 

of  negroes  from  panel,  66. 

white  man  cannot  complain,  67. 

of  grand  juror  on  challenge,  effect  of,  72. 
by  district  attorney,  84. 

of  foreman  for  disqualification,  90. 
EXCUSING  GRAND  JURORS,  84,  160. 

presumption  of  in  Arkansas,  85. 
EXEMPTION 

from  service  as  grand  jurors,  72. 

distinction  between  disqualification  and,  72. 
EXISTENCE 

of  grand  jury  among  Athenians,  i. 
EX  PARTE  BAIN,  altering  indictments,  155. 
EXPUNGING  presentment  from  minutes,   160. 
EYRE 

held  every  seven  years,  9,  12. 

held  by  itinerant  justices,  8,  19. 

how  held,   19. 

hearing  appellor  before  justices  in,  12. 

court  rolls  of,  II. 

of  1218-19,  order  of  King  in  Council,  18. 
FAME,  PUBLIC.    SEE  PUBLIC  FAME. 
FAVOR 

grand  jurors  must  stand  indifferent,  62,  81. 

individual  jurors  may  be  challenged  for,  70,  73. 

challenge  for,  a  common  law  right,  74. 

when  prosecutor  on  grand  jury,  78. 
upon  ground  of  relationship,  80,  81. 
examination  on  voir  dire,  Si. 
cannot  be  made  after  indictment,  85. 
in  Aaron  Burr's  Case,  74,  82. 

conscientious  scruples  against  capital  punishment,  76. 
FEALTY 

pledge  of,  by  amercers,  20. 


I 86  INDEX. 

The  references  are  to  pages. 

FEDERAL  COURTS 

number  of  grand  jurors  in,  45. 

selecting  and  drawing  grand  jurors,  55. 

qualifications  of  grand  jurors,  63,  73,  74. 

challenge  to  array,  when  made,  69,  85. 

standing  aside  grand  jurors,  83. 

swearing  witnesses,  137. 

when  witnesses  disclose  other  offences,  no. 

view  of  authority  of  grand  jurors,  100. 

extent  of  grand  jury's  powers,  102,  109. 

objections  to  indictment  made  by  plea  in  abatement,  86. 

averse  to  quashing  on  technical  grounds,  86. 

district  attorney  to  sign  indictment,  134. 

may  summon  additional  witnesses,  104. 

proceedings  by  information,  115. 

rule  as  to  treason,  144. 

contempt  of,  165. 
FELONY 

trial  by  battle  in  appeal  of,  21. 

FIELD,  MR.  JUSTICE,  powers  of  grand  jury,  108. 
FIFTH  AMENDMENT.    SEE  AMENDMENT. 
FILING  OF  INDICTMENTS,  157. 
FINDING  OF  GRAND  JURY 

cannot  be  impeached,  119. 

influenced  by  district  attorney,   128. 

endorsement  of,  on  bill,  146,  148,  150. 

number  to  concur,  147. 

as  to  part  of  a  count  void,  147. 

true  bill  as  to  some  of  the  defendants,  148. 

incomplete  or  insensible,  148. 

omission  of  words  "true  bill,"  149. 

name  of  offence  no  part  of,  150. 

reconsideration  of,  150. 

failure  to  endorse,  151. 

date  of,  to  be  endorsed  on  bill,  151. 

not  read  in  open  court,  156. 

must  be  recorded,  156. 

freedom  from  control  of  court  in,  164. 

if  improper,  may  be  recommitted,  165. 
FINING  GRAND  JURORS 

declared  illegal,  164. 

Ellis'  Case,  166. 
FLORIDA 

age  limit  for  grand  jurors,  72. 

oath  of  grand  juror,  95n. 

endorsement  of  prosecutor's  name,  135. 


INDEX.  187 

The  references  are  to  pages. 

FOREMAN 

how  selected,  90. 

appointment  of,  noted  on  minutes  of  court,  90,  151. 

to  be  sworn,  93. 

should  not  be  illiterate,  90. 

pro  tern,  may  be  chosen,  90. 

need  not  be  reappointed  when  vacancy  filled,  85. 

receives  indictments  from  district  attorney,  134. 

authority  of,  to  swear  witnesses,  137. 

hands  indictment  to  crier,  154. 

when  to  sign  return,  150. 

signature  of,  as  evidence  of  empaneling,  89. 

vouches  for  regularity  of  proceedings,  151. 
to  final  report,  157. 

name  of,  signed  by  clerk,  14811. 
variance  in,  149. 

when  endorsed  as  prosecutor,  136. 

discharge  of,  when  presumed,  91. 
FORM 

amendment  of  matter  of,  154. 
FORSYTH 

reference  to  the  four  townships,  16. 

participation  of  grand  jury  in  trial  of  offenders,  21. 
FOURTEENTH  AMENDMENT.    SEE  AMENDMENT. 
FOURTH  LATERAN  COUNCIL 

abolishes  ordeal,  18. 

Professor  Thayer  on,  18. 
FOUR  TOWNSHIPS.    SEE  TOWNSHIPS. 
FRANK  PLEDGE 

system  of,  3,  4,  5. 

view  of,  5,  8. 

continuance  under  Normans,  6. 

falls  into  disuse,  8. 

FREE  AND  LEGAL  MEN.    SEE  QUALIFICATIONS  OF  GRAND  JURORS. 
FREEHOLDERS.    SEE  QUALIFICATIONS  OF  GRAND  JURORS. 
FREEMEN 

four  of  every  vill,  14,  15. 

mentioned  by  Bracton,  15. 

no  part  of  the  inquest,  15. 

use  of,  not  obligatory,  16. 

limited  to  concurrence  in  finding  of  inquest,  16. 
FRITH-BOT,  6. 
FUGITIVE  FROM  JUSTICE 

district  attorney  may  act  when  defendant  is,  no. 


1 88  INDEX. 

The  references  are  to  pages. 

GAOLS 

inquest  to  inquire  as  to,  25. 

illegal  detention  of  persons  therein,  by  sheriff,  25. 

escapes  from,  inquiry  into,  25. 
GEMOT,  meeting  of,  5. 
GLANVILLE 

institution  of  prosecutions  in  time  of,  10. 

four  townships  not  mentioned  by,  14. 

presentment  on  suspicion,  15. 

great  interest  of  treatise  of,  9. 
GEORGIA 

oath  of  grand  juror,  9511. 

grand  jurors  to  revise  taxes,  122. 

when  indictment  founded  on  presentment,  132. 

expunging  improper  presentment,  159. 
GRAND  JURORS 

instructions  to,  20. 

number  of  indeterminate,  6. 

superstition  in  number  of,  6. 

manner  of  procuring  attendance  of,  regulated  by  statute,  47. 

names  to  be  set  forth  in  venire,  49. 

impersonation  of,  49. 

may  act  after  jury  empaneled  and  sworn,  51. 

selection  of,  in  Pennsylvania,  52. 

in  Federal  Courts,  55. 

in  England,  57. 

from  improper  class,  52. 

by  whom  summoned,  59. 

manner  of  summoning  immaterial,  54. 

where  incompetent  persons  summoned  as,  52. 

talesmen  summoned  as,  51. 

qualifications  of,  60,  62,  63. 
statute  2  Henry  IV,  C.  9,  61. 

6  George  IV,  C.  50,  61. 
in  Pennsylvania,  61. 

Federal  Courts,  61,  73,  74. 

Blackstone  on  qualifications  of,  61. 

objections  to  personal  qualifications  of,  73. 

incompetent,  may  become  competent,  76. 

objections  to,  when  made,  64,  73n,  85. 

challenge  for  favor,  70,  73,  80,  81. 
by  whom  made,  71. 

exclusion  of,  on  challenge,  72. 

exemption  from  service  as,  72. 

forming  of  opinion  by,  76. 

absence  from  domicile,  81. 


INDEX.  189 

The  references  are  to  pages. 

GRAND  JL'RORS— Continued. 
religious  belief.  81. 
standing  aside,  83. 
wrongfully  excluded,  84. 
may  be  excused,  84,  160. 
dismissed  for  cause,  84. 
empaneling  of,  89. 

where  manner  of  drawing  changed  by  statute,  89. 
administering  oath  to,  91. 
not  sworn  in  any  cause,  122. 
oath  of,  their  commission,  94. 
restraint  upon  authority  of,  102,  109. 
to  hear  witnesses  for  prosecution  only,  103. 
may  ask  for  additional  evidence,  104. 
conduct  examination  of  witnesses,  127. 
twelve  must  concur  to  find  bill,  26,  56,  107. 
may  testify  when,  118. 
sworn  as  witnesses,  132. 
to  investigate  into  public  institutions,  121. 
exceed  authority  when  making  report,  157. 
relation  to  the  court,  163. 
finding  of,  unlawful,  164,  166. 
drunkenness  of,  166. 
when  in  contempt,  121,  165. 
not  responsible  for  wrongful  acts,  166. 
forfeiture  by,  in  Connecticut,  I2n. 
GRAND  JURY 

its  origin,  I,  2. 
law  of  Ethelred  II,  2. 

declaratory  of  common  law,  5. 
Edward  III  and  rise  of,  2. 

development  in  time  of,  26. 
le  graunde  inquest,  2,  26. 
an  accusing  body,  2. 

its  slow  growth,  5. 

duty  to  present  offences,  n. 

knowledge  of,  as  to,  1 1. 

failure  to  present  offenders,  13. 
summoned  by  bailiffs  in  each  hundred,  2. 
panel  of  twenty-four  knights,  2. 
Norman  origin  of,  disputed,  2. 
not  a  Norman  institution,  4. 
Assize  of  Clarendon,  7,  n. 
Northampton,  statute  of,  7,  n. 
Glanville,  institution  of  prosecutions  in  time  of,  10. 
accusing  inquest,  its  scope,  10. 
articles  of  inquiry  or  capitula,  II,  99. 


INDEX. 
The  references  are  to  pages. 
GRAND  ]UR\-^Continued. 

first  instance  of  "ignoramus,"  I4n. 

four  freemen  of  every  vill,  15. 

four  townships,  their  part  in  presentments,  14. 

part  of  trial  jury,  23. 
presentment  on  suspicion,  15. 
instructions  of  1194,  16. 
choosing  twelve  knights,  20. 
oath  of,  in  Bracton's  time,  20,  23,  98,  116. 
in  time  of  Britton,  25,  99,  116. 
in  modern  times,  94. 
instructions  to,  20. 
concealment  of  proceedings  by,  21. 
pledge  of  secrecy,  21,  99,  116. 
confusion  between  petit  and,  21,  22,  23. 
administering  oath,  23,  91. 
separation  of  petit  and,  24,  25. 
in  time  of  Britton,  25. 

increase  in  number  in  time  of  Edward  III,  26. 
an  arm  of  the  government,  27. 
interrogation  of,  by  the  court,  27,  116. 

in  what  cases  not  permitted,  46. 
independence  established,  28. 
attack  on  by  Charles  II,  28. 
case  of  Stephen  College,  28. 
Shaftesbury's  Case,  29. 
statute  of  3  Henry  VIII  C  12,  30. 

improper  use  of,  41. 
coercion  of,  in  Pennsylvania,  31. 
early  instances  of,  in  United  States,  3 in. 
Case  of  John  Peter  Zenger,  32. 

Constitution  of  United  States  omits  reference  to,  32. 
remedied  by  Fifth  Amendment,  32. 
Constitution  of  Pennsylvania,  as  to,  33. 
abolition  of,  35. 

in  Western  States,  44. 
an  irresponsible  body,  40. 
conservative  view  of,  43. 
number  composing,  2,  5,  7,  9,  20,  25,  45. 
drawn  and  summoned  by  sheriff,  48. 
failure  to  summon,  at  fixed  time,  48,  68. 
talesmen  summoned  to  complete,  51. 
implied  power  of  the  court  to  summon,  52. 
summoning  prior  to  regular  term  of  court,  54. 
detention  of,  after  expiration  of  term,  54. 
de  facto  grand  jury,  58. 


INDEX.  I91 

The  references  are  to  paces. 

GRAND  JURY— Continued. 

irregularity  in  selecting  and  empaneling,  68,  89. 

challenge  to  array  or  polls  of,  70. 

irregularity  in,  attacked  in  collateral  proceeding,  88. 

empaneling  of,  88,  89. 

two  organized  at  same  term,  89. 

when  manner  of  drawing  changed  by  statute,  89. 

appointment  of  foreman,  90. 

clerk  of,  how  selected,  91. 

powers  of  ancient  broader  than  modern,  99. 

view  of  authority  of  in  Federal  Courts,  100. 

prosecutions  initiated  before,  100. 

Judge  Addison's  charges  to,  101. 

summoning  of  witnesses  before,  101. 

charged  with  matters  by  the  court,  101,  no,  116. 

difference  in  extent  of  authority  of,  102,  109. 

restraint  upon  authority  of,  102,  165. 

extent  of  inquiry  of,   103. 

inquisitorial  power  of,  104. 

by  whom  matters  submitted  to,  107,  no,  114. 

as  defender  of  liberty  of  press,  115. 

compelled  to  hear  evidence  in  open  court,  117. 

impeaching  finding  of,  119. 

to  pass  on  public  improvements,  121. 

to  investigate  all  crimes,  122. 

charged  by  court,  124. 

attended  by  district  attorney,  127. 

power  of,  to  swear  witnesses,  137. 

defendant  not  to  be  present  before,  140. 

governed  by  ordinary  rules  of  evidence,  142. 

to  determine  sufficiency  of  evidence,  142. 

finding  of  bill  by,  146. 

new  bill  submitted  to,  after  ignoramus,  152. 

presentment  of  finding  by,  154. 

report  of,  on  completion  of  duties,  157.  . 

whether  improper  report  of,  will  be  allowed  to  stand,  159 

discharged  when  duties  completed,  160. 

re-assembling  members  of,  160. 

relation  of,  to  the  court,  163. 

discharge  of,  presumed,  89n,  160. 
GUILT 

forming  opinion  as  to  innocence  or,  76. 

pritna  facie  presumption  of,  141. 
HABEAS  CORPUS 

discharge  upon,  refused  in  case  of  In  re  Wilson,  47. 
HAMILTON,  ANDREW 

defends  Zenger,  32. 


I  92  INDEX. 

The  references  are  to  pages. 
HARDY,  TRIAL  OF,  127. 
HEARSAY  EVIDENCE  not  to  be  received,  142. 
HENRY  VIII,  Statute  of  3,  C.  12,  30,  41. 
HIGHWAYS 

presentment  of  inquest  in  relation  to,  25. 
HOUSEHOLDER.    SEE  QUALIFICATIONS  OF  GRAND  JUROR. 
HUE  AND  CRY,  4,  12. 
HUNDRED  COURTS, 

compurgation  in,  8,  26,  27. 
HUNDRED 

inquest  summoned  by  bailiffs,  2. 

amerced  for  escape  of  offender,  4. 

meeting  of  gemot  in,  5. 

disappearance  of  accusing  bodies  of,  27. 

grand  jurors  to  be  of,  from  which  chosen,  60. 
HUSTON,  MR.  JUSTICE,  Huidekoper  v.  Cotton,  118. 
IDAHO,  oath  of  grand  juror  in,  g6n. 
IGNORAMUS 

first  instance  of,  I4n. 

return  of,  in  Stephen  College's  Case,  29. 
in  Shaftesbury's  Case,  29. 

upon  many  cases  returned  by  magistrates,  35. 

when  to  be  found,  146. 

reconsideration  of,   150. 

new  bill  may  be  submitted  after,  112,  152. 

defendant  held  in  bail  after,  153. 

information  filed  after  return  of,  115. 
IGNORANCE 

of  right  to  challenge  no  excuse,  71,  74. 
ILLINOIS,  oath  of  grand  juror,  g6n. 
IMPEACH 

finding  of  grand  jury,  119. 
IMPERSONATION 

of  grand  juror,  49,  5in. 
IMPLIED  PROHIBITION 

of  Assize  of  Clarendon,  8. 
INCOMPETENT 

persons  summoned  as  grand  jurors,  52. 

exempt  persons  are  not,  72. 

when  absence  from  domicile  will  render  grand  juror,  81. 

witness,  indictment  found  upon  evidence  of,  143,  144. 

evidence  not  to  be  received,  142. 

witness  testifying  under  objection,  145. 
INCORPORATION  OF  BOROUGH 

grand  jury  to  pass  upon,  121. 


INDEX.  193 

The  references  are  to  pages. 
INDEPENDENCE 

of  grand  jury  established,  28. 

asserted  in  College's  and  Shaftesbury's  Cases,  30. 
from  control  of  court,  163. 

INDEPENDENT  GAZETTE,  Oswald's  Case,  31. 
INDIANA,  oath  of  grand  jurors  in,  g6n. 
INDIAN  TERRITORY,  oath  of  grand  juror  in,  o8n. 
INDICTMENT 

by  accusing  inquest,  22,  24. 
upon  knowledge  of  one  grand  juror,  24. 
no  guaranty  of,  in  Constitution  of  United  States,  32. 
where  24  grand  jurors  sworn  and  act,  45. 
twelve  must  concur  to  find,  26,  56,  108. 

effect  of  less  than  minimum  number  of  grand  jurors  on,  46,  47. 
when  no  precept  issued,  4811. 
error  in  grand  juror's  name,  49. 

invalid  when  selection  made  from  improper  class,  52. 
effect  of  irregularity  in  drawing  and  selecting,  57. 
found  by  grand  jury  unlawfully  constituted,  56. 
by  de  facto  grand  jury  sustained,  58. 
effect  of  Statute  11  Henry  IV,  C.  9,  upon,  61. 
disqualification  of  grand  juror,  62,  63. 
failure  of  defendant  to  challenge,  71. 
service  of  exempt  person,  effect  on,  72. 
objections  to  grand  jury  before  indictment,  73n,  85. 
after  indictment,  64,  73,  85. 

raised  by  motion  to  quash  or  plea  in  abatement,  86. 
when  made  by  demurrer,  86. 
plea  to,  a  waiver  of  defects,  87. 
one  disqualified  person  will  vitiate,  87,  139. 
void  if  grand  jury  organized  contrary  to  statute,  88,  89. 
endorsement  on,  as  evidence  of  empanelling,  89. 
inability  of  foreman  to  write,  effect  on,  90. 
sustained  though  no  foreman  appointed,  91. 
district  attorney  may  submit  bill  of,  to  grand  jury,  no. 
to  be  earmarked,  1 14. 
present  when  vote  taken,  128. 
hands  bill  to  foreman,  134. 
signature  of,   134. 

submitting  new,  after  ignoramus,  112. 
may  embrace  additional  charges,  114. 
not  invalidated  by  failure  to  charge,  I24n. 
and  presentment,  131. 
definition  of,  131. 

when  based  upon  presentment,  132. 
13 


194  INDEX. 

The  references  are  to  pages. 
INDICTMENT— Continued. 

witnesses  not  heard  in  support  of,  132. 
names  of,  endorsed  on,  135. 

finding,  146. 

when  to  be  ignored,  146. 

finding  part  of  count  of,  void,  147. 

found  as  to  some  of  the  defendants,  148. 

billa  vera  se  defendo,  148. 

charging  murder  and  found  for  manslaughter,  148. 

reconsideration  of,  150. 

never  alleges  organization  or  action  of  grand  jury,  151. 

handed  to  crier  by  foreman,  154. 

amendment  of,  154. 

resubmission  of,  to  grand  jury,  154. 

reading  of,  to  grand  jury,  155. 

sent  into  court  by  messenger,  156. 

should  be  filed,  157. 
INDICTOR, 

not  to  serve  upon  petit  jury,  25. 

INDIFFERENT 

where  grand  juror  does  not  stand,  73»  81. 

INFAMOUS  CRIME.    SEE  INFORMATION. 
witness  convicted  of,  143. 

INFLAMMATORY  CHARGE 

when  error,  126. 
INFORMATION 

effect  of  Fifth  Amendment  on  right  to  file,  33. 

Fourteenth  Amendment  does  not  prevent  States  from  proceeding 
by,  33- 

prosecution  by  in  Pennsylvania,  34,  113. 

filed  in  all  cases  in  California,  44. 

cannot  be  filed  for  capital  or  infamous  crime,  33,  153. 

sometimes  filed  when  bill  ignored  by  grand  jury,  33. 

offences  not  contained  in  original,  114. 

proceeding  by,  in  Federal  Courts,  115. 

district  attorney  must  obtain  leave  to  file,  115. 

filed  when  bill  ignored,  115. 
INGERSOLL 

on  question  whether  offenders  tried  by  grand  jury,  22. 

on  secrecy  in  grand  juror's  oath,  116. 
INITIAL 

error  in  grand  jurors'  name,  49. 

use  of,  in  foreman's  signature,  149. 

of  defendant  used  in  bill,  152. 


INDEX.  195 

The  references  are  to  pages. 
INNOCENCE 

presumption  of,  37. 

must  be  overcome,  1050. 
establishment  of,  before  petit  jury,  37. 
forming  opinion  as  to  guilt  or,  76,  78. 
INQUEST,  ACCUSING.    SEE  ACCUSING  INQUEST. 
INQUEST,  LE  GRAUNDE,  2. 
INQUEST 

writs  awarding,  17. 

not  to  be  bought  or  sold,  17. 
provisions  of  Magna  Charta  as  to,  17. 

INQUIRE 

grand  jurors  to  diligently,  101,  105. 
meaning  of  in  Pennsylvania,  101. 
INQUIRY 

articles  of,  II. 

of  grand  jury  within  territorial  jurisdiction,  103. 
INQUISITORIAL  POWER 

of  grand  jurors  in  California,  44. 

of  Federal  grand  jurors,  102. 

of  grand  jurors  in  Tennessee,  Missouri  and  Maryland,  104. 
INSANE 

bill  finding  defendant,  148. 
INSTRUCTIONS 

of  1194,  n,  1 6. 

to  accusing  body,  20. 

INTEREST  OF  GRAND  JUROR.    SEE  FAVOR. 
INTERPRETER 

presence  of  in  grand  jury  room,  I4on. 
INTERROGATION 

of  grand  jurors  by  court,  27,  116. 

in  what  cases  not  permitted,  46. 
IOWA 

when  challenge  not  permitted  in,  70. 

oath  of  grand  juror,  gSn. 

affidavits  received  to  show  coercion  of  grand  jury,  119. 
IRREGULARITY 

in  selecting  and  drawing,  57,  66,  68. 

in  record,  51. 

in  empaneling,  8sn. 

in  finding,  148. 

district  attorney  present  when  vote  taken,  128. 

accused  persons  may  take  advantage  of  every,  64. 

in  organization,  technical  objections  to  not  favored,  86. 

cannot  be  attached  in  collateral  proceeding,  88. 


196  INDEX. 

The  references  are  to  pages. 
IRRELEVANT  EVIDENCE 
not  to  be  received,  142. 
ITER.    SEE  ITINERANT  JUSTICES. 
ITINERANT  COURTS,  7. 
ITINERANT  JUSTICES 
none  in  Normandy,  8. 
pleas  of  crown  administered  by,  8. 
increased  jurisdiction  of,  II. 
capitula  delivered  to,  n. 
hearing  appeals  before,  12. 
optional  to  inquire  of  four  townships,  16. 
order  of  King  in  Council  to  Eyre  1218-19,  18,  ig. 
reading  of  writs,  19, 
call  four  or  six  busones,  19,  20. 
read  articles  of  inquiry  to  inquest,  20,  99. 

may  require  disclosure  of  reasons  upon  which  inquest  acted,  21. 
presentment  indented  and  one  part  delivered  to,  25. 
control  of,  over  grand  jurors,  163. 
JAILS 

inquest  to  inquire  as  to,  25,  121. 
illegal  detention  of  persons  therein  by  sheriff,  25. 
escapes  from,  inquiry  into,  25. 
JAMES  II  flees  to  France,  31. 

JILLARD  vs.  COMMONWEALTH,  swearing  witnesses,  138. 
JOHNSON,  CHIEF  JUSTICE,  administration  of  oath,  92. 
JUDGES 

participation  of,  in  settling  grand  jury,  53,  580. 
standing  grand  jurors  aside  by,  83. 
cannot  organize  two  grand  juries  at  same  term,  89. 
improperly  influencing  grand  jury,  119, 
may  be  temporarily  absent  from  bench.  13711. 
control  over  grand  jurors,  163,  165. 
in  Federal  Courts  may  commit  for  contempt,  165. 
JUDGMENT,  ARREST  OF, 

objections  to  array  or  polls  cannot  be  raised  by,  87. 
omission  of  prosecutor's  name  not  ground  for,  I35n. 
objections  in,  cannot  be  raised  after  plea,  138. 
admission  "of  irrelevant  evidence,  not  ground  for,  143. 
when  motion  will  be  sustained,  147. 
when  words  "true  bill"  printed  on  bill,  151. 
when  finding  not  recorded,  156. 
JURISDICTION 

of  itinerant  justices  increased,  n. 
territorial,  inquiry  into  offences  within,  103. 
of  grand  jury  over  its  own  members,  166. 
JURORS.    SEE  GRAKD  JUROKS. 


INDEX.  197 

The  references  are  to  page*. 

JURY  COMMISSIONERS 

return  need  not  show  service  of  venire  upon,  49. 

in  Pennsylvania,  53. 

need  not  swear  jurors  returned  according  to  law,  54. 

cannot  delegate  authority  to  another,  58. 

failure  to  file  oath,  array  not  quashed,  66. 

irregularities  by,  67. 
JURY,  GRAND.    SEE  GRAND  JURY. 
JURY,  PETIT.    SEE  PETIT  JURY. 
JURY,  TRIAL  BY, 

among  Scandinavians,  3. 

system  carried  into  Normandy  by  Rollo,  3. 

introduced  into  England,  6. 
JUSTICE  OF  THE  PEACE 

as  grand  juror,  137. 

JUSTICES,  ITINERANT.    SEE  ITINERANT  JUSTICES. 
JUSTICES,  power  of,  over  grand  jury  panel,  30,  41. 
KANSAS,  oath  of  grand  juror,  g6n. 
KENTUCKY 

oath  of  grand  juror,  g$n. 

endorsement  of  prosecutor's  name,  135. 
KING  JOHN 

trial  by  jury  first  used  in  reign  of,  17. 
KING,  JUDGE 

warning  of,  44 

opinion  on  powers  of  grand  jurors,  106,  164. 

as  obiter  dictum,  m,  112. 
KING 

order  of,  in  Council  to  Justices  in  Eyre,  18,  19. 

to  sue  on  behalf  of  his  peace,  19. 
KING'S  MERCY,  inquest  in,  13. 
KING'S  SERGEANTS 

duty  to  enrol  appcllor's  complaint,  12. 
KNiGHTS 

panel  of  twenty-four,  a. 

presentment  by  twelve,  8. 

choosing  of,  by  sergeants,  20. 

qualifications  of  twelve,  20. 
KNOWLEDGE 

matters  within  grand  juror's,  101,  108. 

of  offence  against  United  States,  109. 

grand  jurors  to  disclose  how,  acquired,  117. 

of  grand  jurors,  presentment  upon,  119,  132. 

in  Pennsylvania,  108,  no,  131. 
LATERAN  COUNCIL.    SEE  FOURTH  LATERAN  COUNCIL. 


198  INDEX. 

The  references  are  to  pages. 

LAW 

of  Reignerus  surnamed  Lodbrog,  3. 

due  process  of,  33,  3911. 

of  the  land,  3911. 

every  person  bound  to  know  the,  133. 

changing  method  of  empaneling,  89. 

Territorial,  effect  of  when  State  created,  90. 
LEET.    SEE  COURT  LEET. 
LEGISLATURE 

may  regulate  manner  of  making  objections,  70. 

cannot  take  away  right  of  challenge,  70. 
LE  GRAUNDE  INQUEST,  2,  26. 

growth  of  influence  of,  26. 
LEWIS'  TRIAL,  standing  jurors  aside,  83. 
LIBEL 

grand  jury  ignores  prosecutions  for,  115. 

by  grand  juror  in  report,  158. 
LIBERTY  OF  THE  PRESS,  115. 
LIMITATIONS,  STATUTE  OF 

investigations  barred  by,  103. 
LIST 

challenge  to  array  for  irregularity  in,  66. 

identity  between  poll  book  and  registry,  68. 

of  witnesses  furnished  to  defendant,  136. 
LLOYD  AND  CARPENTER'S  CASE,  44. 
LODBROG,  law  of,  3. 

LOUISIANA,  qualifications  of  grand  juror  in,  63. 
LUDLOW,  JUDGE,  Grand  Jury  and  the  Public  Press,  116. 
MAGISTRATE 

preliminary  hearing  before,  35. 

many  cases  returned  by,  ignored,  35. 

grand  jury  review  judgment  of,  37. 

selected  because  of  political  services,  38. 

stipendiary,  in  England,  38. 

as  grand  juror,  78. 

private  prosecutor  to  begin  proceedings  before,  109. 

indictments  charging  offences  not  raised  before,  114. 
MAGNA  CHARTA 

Article  36,  writs  of  inquest,  17. 

applies  to  writs  of  assize,  17. 

"law  of  the  land,"  Art.  29,  Hurtado  v.  California,  no  U.  S.  516,    39n. 
MAINE,  oath  of  grand  juror,  94n. 
MARSHAL 

summons  Federal  grand  jurors,  55. 
MARSHALL,  CHIEF  JUSTICE,  82,  125,  131. 
MARYLAND,  inquisitorial  powers  of  grand  jury  in,  104. 


INDEX.  199 

The  references  are  to  pages. 
MASSACHUSETTS 

oath  of  grand  juror,  940. 

names  of  witnesses  not  endorsed  on  bill,  136. 
MATERIAL,  books  and  papers   when,   133. 
MAYHEM 

where  appellor  has  a,  10,  21. 
McKEAN,  CHIEF  JUSTICE 

Oswald's  Case,  31. 

explains  meaning  of  "diligently  enquire,"  101. 

presence  of  witnesses  for  defendant,  140. 
MESSENGER 

indictments  brought  into  court  by,  156. 
MICHIGAN,  oath  of  grand  juror,  g6n. 
MINNESOTA,  oath  of  grand  juror,  o6n. 
MINUTES  OF  COURT 

show  appointment  of  foreman,  90. 
grand  jury  sworn,  92. 

expunging  presentment  from,  160. 
MISCONDUCT 

of  district  attorney,  128. 

of  grand  juror,  165. 
MISSISSIPPI 

coercion  of  grand  jury,  3 in. 

oath  of  grand  juror,  g6n. 

examination  of  tax  collectors'  books,  122. 

endorsement  of  prosecutor's  name,  135,  136. 

witnesses'  names  not  returned  with  indictment,  137. 
MISSOURI 

oath  of  grand  juror,  96*1. 

inquisitorial  power  of  grand  jurors,  104. 

endorsement  of  prosecutor's  name,  135. 
MONTANA,  oath  of  grand  juror,  o8n. 
NAMBDA 

used  by  Scandinavians,  3. 

civil  cases  only  considered  by,  3. 

criminal  pleas  not  considered  by,  3. 

similarity  to  sectatores,  4. 
NAME 

error  in  grand  juror's  name,  49. 

of  talesmen  not  to  be  furnished  by  judge,  51. 

irregularity  in  selection,  67. 

identity  of,  in  lists,  68. 

foreman  unable  to  write,  90. 

of  foreman,  signed  by  clerk,  I48n. 
variance  in,  149. 
abbreviation  of,  149. 


20O  INDEX. 

The  references  are  to  pages. 
NAME— Continued. 

of  witnesses  endorsed  on  bill,  135. 

of  prosecutor  endorsed  on  bill,  135. 

of  offence  endorsed  on  bill,  150. 

ignorance  of,  by  grand  jury,  152. 
NEBRASKA,  oath  of  grand  juror,  g6n. 

NEGROES 

exclusion  of  from  panel,  66. 
NEVADA,  oath  of  grand  juror,  ojn. 
NEW  BILL 

may  be  sent  to  grand  jury  after  ignoramus,  152. 

may  be  found  when  first  bill  defective,  155. 
NEW  HAMPSHIRE,  oath  of  grand  juror,  94n. 
NEW  MEXICO,  oath  of  grand  jurors,  oSn. 
NEW  TRIAL,  when  awarded,  145. 
NEW  YORK 

Case  of  John  Peter  Zenger,  32. 

de  facto  grand  jury,  58. 

oath  of  grand  juror,  95n. 
NOLLE  PROS 

district  attorney  may  enter,  42,  142. 

prosecution  by  information  after  entry  of,  H5n. 

new  indictment  for  same  offence  after,  132. 
NORMAN 

origin  of  grand  jury  disputed,  2. 

institution,  petit  jury  a,  2. 

grand  jury  not  a,  4. 

appeal,  3. 

occupation,  frank  pledge  continues  under,  6. 

laws,  introduction  of,  7. 
NORMANDY 

no  itinerant  justices  in,  8. 
NORTH  CAROLINA 

qualifications  of  grand  juror,  62. 

Branch's  Case,  117. 

endorsement  of  prosecutor,  136. 

indictment  found  upon,  testimony  of  interested  witnesses,  143. 
NORTH  DAKOTA,  oath  of  grand  juror,  o8n. 
NORTHAMPTON 

Assize  of,  7,  n,  17. 

divided  kingdom  into  six  circuits,  8,  9. 

provisions  of,  9. 

NORTH,  LORD  CHIEF  JUSTICE,  in  case  of  Stephen  College,  2& 
NOT1  FOUND 

return  of,  147. 


INDEX.  2O I 

Th«  references  are  to  pages. 
NUMBER 

composing  grand  jury,  2,  5,  9,  20,  25,  45,  55. 
increased  to  twenty-four  in  time  of  Edward  III,  26. 
twelve  must  concur  to  find  bill,  26,  56,  108,  147. 
presence  of  more  than  twenty-four  will  invalidate  indictment,  46. 
effect  of  less  than  minimum  number  on  indictment,  46,  47. 
grand  jurors  in  excess  of  legal,  excused,  85. 
concurring  testimony  of  grand  jurors  as  to,  119. 
of  talesmen  to  be  summoned,  54. 
composing  petit  jury,  3,  22,  23,  24. 
NUNC  PRO  TUNC 

amendment  of  record,  93. 
OATH 

of  grand  jurors,  20,  98. 
in  time  of  Bracton,  20,  98. 

Britton,  20,  99. 

Ethelred  II,  98. 

Cromwell,  99. 
of  trial  jurors,  22. 
of  four  townspeople,  22. 
how  administered  to  petit  jurors,  23. 
clause  of  secrecy  in,  21,  25,  27,  116,  162. 
grand  juror  appearing  after  administration  of,  51. 
objections  by  defendant  before  and  after,  64,  85. 
of  jury  commissioners,  array  not  quashed  for  failure  to  file,  66. 
taken  by  sheriff,  record  need  not  show,  68. 
need  not  be  readministered  to  foreman,  85. 
how  administered  to  grand  jurors,  91. 
as  his  commission,  94. 
form  of,  04. 
grant  of  power  in,  105. 
not  intended  to  punish  innocent,  118. 
not  violated,  when,  120. 
grand  jurors  not  sworn  in  any  cause,  122. 
of  witnesses,  administration  by  grand  jurors,  138. 
OBJECTIONS 

to  grand  jurors,  when  made,  64,  74. 

to  array,  65. 

to  grand  jurors,  legislature  may  regulate  making  of,  70. 

made  and  withdrawn,  effect  of,  70. 

to  personal  qualifications  of  grand  jurors,  73. 

to  grand  jurors  before  indictment  found,  73. 

when  to  be  by  plea,  75,  84,  86. 
raised  by  motion  to  quash  indictment,  86. 
technical,  not  favored  by  courts,  86. 
waived  by  plea  of  general  issue,  87. 


202  INDEX. 

The  references  are  to  pages. 
OBJECTIONS— Continued. 

made  before  verdict,  149. 

incompetent  witness  testifying  under,  145. 
OFFICER 

absence  of,  when  selection  made,  58. 

cannot  delegate  authority  to  another,  58. 

de  facto,  58. 

presumption  of  regularity  of  acts  of,  59. 

irregularity  in  acts  of,  67. 

accused  may  take  advantage  of  irregular  acts  of,  64. 

failing  to  file  oath,  array  not  quashed,  66. 

of  government,  grand  jury  to  summon  as  witness,  102. 

exceptional  power  of  prosecuting,  112. 

investigating  accounts  of  public,  121. 

of  crown  attends  grand  jury,  127. 

presence  of,  in  grand  jury  room,  128,  i4On. 
OHIO 

oath  of  grand  juror,  96n. 

endorsement  of  prosecutor's  name,  135. 

OKLAHOMA,  oath  of  grand  jury,  98n. 
OPINION 

forming  and  expressing,  76,  77. 

district  attorney  not  to  express,   142. 

Judge  King's,  on  powers  of  grand  jurors,  106. 

Mr.  Justice  Field's,  on  powers  of  grand  jurors,  108. 

ORANGE,  WILLIAM  OF,  31. 
ORDEAL 

of  fire  or  water,  trial  by,  4. 

when  awarded  or  refused,  10,  14. 

assize  of  Clarendon  prescribes  trial  by,  7,  8. 
Northampton  prescribes  trial  by,  9. 

abolished  by  Fourth  Lateran  Council,  18. 

supplanted  on  presentments  by  trial  by  jury,  18. 

ORDER.    AND  SEE  PRECEPT. 

directing  issuance  of  venire,  48,  55. 

to  whom  issued,  48. 

need  not  be  entered  of  record,  48n. 

verbal,  sufficient,  48n,  sin. 

indictment  quashed  where  no  order  issued,  48n. 

need  not  be  served  an  sheriff,  48n. 

to  summon  talesmen,  50. 

directing  selection  from  improper  class,  52. 

of  King  in  Council  to  Eyre  of  1218-19,  18,  19. 
OREGON,  oath  of  grand  juror,  97n. 


INDEX.  2O3 

The  references  are  to  pages. 
ORGANIZATION 

of  grand  jury,  technical  objection  to  irregularity  in,  86. 

of  two  grand  juries  at  same  term,  89. 

indictment  never  alleges,  151. 
ORIGIN 

of  grand  jury,  I,  2. 

Anglo-Saxon,  2. 

Norman  disputed,  2. 

OSWALD'S  CASE,  Independent  Gazette,  31. 
PANEL 

of  twenty-four  knights,  2. 

power  of  justices  over,  30,  41. 

drawn  and  summoned  by  sheriff,  48. 

substitutes  not  to  be  received  for,  51. 

reduced  below  number  necessary  to  indict,  50,  54. 

exclusion  of  negroes  from,  66. 

challenge  to,  68. 

State's  attorney  cannot  challenge,  70. 

exclusion  of  grand  juror  from,  84. 

disqualified  person  on,  will  vitiate  indictment,  87. 

incomplete  when  oath  administered,  92. 
PAPERS.    SEE  BOOKS  AND  PAPERS. 
PARKER,  CHIEF  JUSTICE,  50. 
PARSONS,  JUDGE,  Com.  v.  Crans,  162,  165. 
PEACE 

king  to  sue  on  behalf  of,  19. 
PEARSON,  CHIEF  JUSTICE,  State  v.  Branch,  117. 

PEMBERTON,  LORD  CHIEF  JUSTICE,  Shaftesbury's  Case,  29. 
PENNSYLVANIA 

Constitution  of,  33. 

Declaration  of  Rights  in,  34. 

all  offences  indictable,  34,  113. 

beginning  prosecutions  in,  101. 

selecting  and  procuring  attendance  of  grand  jurors,  52. 

challenge  for  favor,  how  determined,  82. 

meaning  of  "diligently  inquire,"  101. 

extent  of  grand  jury's  powers,  102,  109. 

grand  jury  to  authorize  public  improvements,  121. 

authority  of  grand  jurors  to  swear  witnesses,  137. 

knowledge  of  grand  jurors,  f3i. 

attacks  on  grand  jury  by  press,  115. 

coercion  of  grand  jury,  31. 

early  presentments  in,  3in. 

when  presentment  made,  132. 

formal  defects  may  be  amended,  154 

authority  of  district  attorney,  130. 


2O4  INDEX. 

The  references  are  to  pages. 
PENNSYLVANIA— Continued. 

improper  communication  with  grand  jurors  in,  162. 

contempt  of  court,  165. 

drunkenness  of  grand  juror,  166. 

jury  de  medietate  abolished,  63n. 

PEOPLE  vs.  PETREA,  de  facto  grand  jury,  s& 

PEREMPTORY   CHALLENGE 

favor  not  a,  74. 

never  allowed,  75,  82. 

not  known  in  time  of  Bracton  and  Britton,  75. 
PERJURY 

committed  before  grand  jury,  108,  118. 

secrecy  in  oath  to  eliminate  perjury,  116. 

witnesses  convicted  of,  144. 
PETIT  JURY 

a  Norman  institution,  2. 

use  of,  in  criminal  cases,  10. 

confusion  of  grand  and,  21,  22,  23. 

proceedings  before,  described  by  Bracton,  22. 

removal  of  member  of,  on  suspicion,  22. 

oath  of,  22. 

not  limited  to  twelve  jurors,  23. 

how  sworn,  23. 

challenge  for  cause,  23. 

a  jury  of  witnesses,  24. 

doctrine  of  "afforciament"  employed  on,  24. 

separation  of,  from  grand  jury,  24,  25. 

indictor  not  to  serve  upon,  25. 

defendant  may  establish  innocence  before,  37. 
PHILADELPHIA 

selection  of  grand  jurors,  53n. 

qualifications  of  grand  jurors  in,  62n. 
PLEA 

will  cure  defects  in  proceedings,  56,  87,  138. 

challenge  to  array  must  be  made  before,  68. 
individual  jurors  before,  72,  73. 

objections  to  grand  jurors  to  be  by,  75,  86. 

in  abatement,  when  sustained,  80. 

upon  ground  of  relationship,  81. 
two  or  more  may  be  filed,  86. 
PLEADING  IN  ABATEMENT.    SEE  ABATEMENT. 
POLLS,  CHALLENGE  TO 

how  made,  70. 

when  made,  85. 


INDEX.  205 

The  references  are  to  pages. 
POLYGAMY 

conscientious  scruples  against  indicting  for,  76. 
challenge  to  grand  jurors  on  ground  of,  82. 
POWERS 

of  ancient  grand  jury  broader  than  modern,  99. 

of  grand  jury,  limitation  upon  in  time  of  Cromwell,  99. 

difference  in  extent  of,  102,  109. 

Chief  Justice  Chase  on,  102. 

restraint  upon,  102,  165. 

view  of,  in  Federal  Courts,   ioa 

extent  of,  to  investigate,  103. 

to  punish  witnesses,  104,  165. 

inquisitorial,  104. 

grant  of,  in  oath,  105. 

devolving  upon  grand  jury  by  statute,  121. 
PRATT,  JUDGE.    Com.  v.  English,  in,  113. 
PRECEPT.    And  see  ORDER. 

directing  issuance  of  venire,  48,  55. 
to  whom  issued,  48. 
need  not  be  entered  of  record,  48n. 
verbal,  sufficient,  48n. 
indictment  quashed  where  no,  issued,  48n. 
PRESENTMENT 

by  twelve  senior  thanes,  3,  8. 

by  seven  jurors,  6. 

by  twelve  knights,  8. 

by  twelve  grand  jurors,  56,  119. 

by  accusing  body,  10,  u,  21,  24. 

upon  public  fame  or  suspicion,  13,  15,  19. 

made  only  when  appeal  failed,  12. 

failure  of  inquest  to  make,  13. 

inquest  in  King's  mercy  for  false,  13. 

part  taken  by  townships  in  making,  14, 

made  in  writing  and  indented,  25. 

early,  in  Pennsylvania,  3in. 

when  made  in  Pennsylvania,  132. 

no  guaranty  of  in  Constitution  of  United  States,  33. 

remedied  by  Amendment  V,  32. 

when  void  under  11  Henry  IV,  c.  9,  61. 

limitations  on  power  of,  99. 

prosecutions  instituted  by,  107. 

grand  jurors  to  make  true,  101. 

making  of  by  grand  jury,  154. 

when  made,  105. 

definition  of,  107,  130. 

upon  knowledge  of  grand  jurors,  119. 


206  INDEX. 

The  references  are  to  pages. 
PRESENTMENT— Continued. 

and  indictment,  131. 

when  indictment  based  upon,  132. 

Daniel  Davis  on  improper,  158. 

whether  improper,  will  be  allowed  to  stand,   159. 

making  false,  163. 
PRESS 

grand  jury  the  defender  of  liberty  of,  115. 

attacks  on,  by  grand  jury,  115. 
PRESUMPTION.    And  see  INNOCENCE. 

of  innocence,  37. 
must  be  overcome,  105. 

of  regularity  of  official  acts,  59. 

that  reason  existed  for  excusing  grand  juror,  84. 

that  grand  jurors  were  excused  in  Arkansas,  85. 

that  grand  jury  was  discharged,  89,  160. 

of  discharge  of  foreman,  91. 

that  witnesses  were  sworn,  138. 

prima  facie,  of  guilt,  141. 
PRIMA  FACIE 

presumption  of  guilt,  141. 

case  made  out  by  evidence,  146. 

PRINTED  ENDORSEMENT  ON  BILL,  effect  of,  151. 
PRIVATE  COUNSEL 

presence  of,  128. 

make  application  to  send  new  bill  to  subsequent  grand  jury,  153. 
PRIVILEGE 

of  challenge,  waiver  of,  71,  72. 

PRIVILEGED  COMMUNICATION.    See  COMMUNICATION. 
PROCESS  to  summon  witnesses,  104. 
PROHIBITION,  IMPLIED,  of  Assize  of  Clarendon,  8. 
PROPTER  AFFECTUM,  76. 
PROSECUTION 

defendant  challenging  must  show  he  is  under,  70. 

evidence  for,  only  to  be  heard,  103,  140. 

institution   of,  Judge   King's  opinion,    106. 

for  libel,  grand  jury  defends  press  in,  115. 
PROSECUTIONS 

institution  of  in  time  of  Glanville,  10. 
in  time  of  Bracton,  19. 

trial  awarded  with  relation  to  manner  of,  21. 
PROSECUTOR 

right  of,  to  initiate  proceedings  before  grand  jury,  100. 

private,  not  to  intrude  upon  grand  jury,  109. 

presence  of  private  counsel  for,   128. 

grand  juror  may  testify  who  was,  119. 


INDEX.  207 

The  references  are  to  page*. 
PROSECUTOR— Continued. 

asking  instruction  to  grand  jury,  126. 

name  of,  endorsed  on  bill,  135. 

as  member  of  grand  jury,  77,  78. 
PUBLIC  FAME 

presentment  on,  13,  19,  24. 
PUBLIC 

institutions,  investigation  into,  121. 

officials,  investigating  accounts  of,  121. 

improvements,  supervision  over,  121. 

buildings  approved  by  two  grand  juries,  121. 
PUBLIC  POLICY 

examination  on  voir  dire,  against,  81. 

wrongful  acts  of  grand  juror  upheld  upon,  166. 
PUBLICATION 

of  finding  of  grand  jury,  156. 
QUALIFICATIONS  OF  GRAND  JURORS 

in  Bracton's  time,  60,  62. 

in  Sixteenth  Century,  60. 

Coke's  comments  on,  60. 

Blackstone's  comments  on,  61. 

Chitty's  comments  on,  60. 

Statute  it  Henry  IV,  c.  9,  defines,  61. 

under  6  George  IV,  c.  50,  61. 

in  Federal  Courts,  63. 

in  Pennsylvania,  61. 

in  Tennessee,   West   Virginia,   Arkansas,   South    Carolina   and 
North  Carolina,  62. 

in  Louisiana  and  Washington,  63. 

need  not  be  freeholders,  60,  62. 

should  be  freeholders,  61,  62,  77. 

aliens  not  competent,  60,  63,  77. 

age  as  one  of  the,  72. 

domicile  as  affecting,  81. 

objections  to  personal,  73,  77. 

legislature  may  regulate  making  of  objections  to,  70. 
QUASH,  MOTION  TO.    And  see  INDICTMENT. 

where  grand  jury  not  summoned  at  proper  time,  48. 

when  drawing  and  selecting  irregular,  57. 

where  record  irregular,  51. 

does  not  show  empaneling,  89. 

array,  when  sustained,  66. 

when  not  sustained,  67. 
how  made,  68. 

objections  after  indictment  raised  by,  86. 

not  sustained  where  no  effort  to  challenge  made,  71. 


208  INDEX. 

The  references  are  to  pages. 
QUASH,  MOTION  TO— Continued. 

cannot  be  made  after  general  issue  pleaded,  87. 

error  in  name,  49. 

where  juror  disqualified,  62,  63. 

for  exclusion  of  negroes,  67. 

when  leave  of  court  not  obtained,  114. 

for  improperly  swearing  witnesses,  138. 

where  defendant  compelled  to  testify  against  himself,  145. 

where  indictment  found  on  testimony  of  incompetent  witnesses,  144. 

when  improper  report  made,  159. 

not  sustained  for  admission  of  irrelevant  evidence,  143. 
QUASHED 

tales  not  to  issue  when  array,  52. 

if  exempt  person  serves,  indictment  will  not  be,  72. 
READING 

of  sheriff's  roll,  13. 

indictment  to  grand  jury,  155. 
REAL  ACTIONS 

award  of  writ  of  inquest  in,  17. 

RE-ASSEMBLING  grand  jury  after  discharge,  160. 
REBELLION 

against  United  States  as  disqualification,  63,  73. 
RECOGNIZANCE 

witnesses  bound  by,  to  appear,  132. 

defendant  held  in,  after  bill  ignored,  153. 
RECOMMITTING 

improper  finding  to  grand  jury,  165. 
RECONSIDERATION 

of  finding,  150. 
RECONVENE 

when  grand  jury  may,  160. 
RECORD 

to  disclose  necessity  for  talesmen,  51. 

need  not  show  oath  taken  by  sheriff,  68. 

must  show  empaneling  of  grand  jury,  89. 

appointment  of  foreman  noted  on,  90, 

to  show  that  foreman  was  sworn,  93. 

to  show  that  grand  jurors  were  sworn,  92. 

offered  in  evidence,  119. 

finding  to  be  entered,  156. 

striking  improper  report  from,  159. 

may  be  amended  nunc  pro  tune,  93. 

RECTOR  vs.  SMITH,  libellous  report  by  grand  jury,  158. 
REDRESS 

of  defendant  from  malicious  acts  of  grand  juror,  166. 


INDEX.  2O9 

The  references  are  to  pages. 

REEVES,  MR. 

as  to  participation  of  grand  jury  in  trial  of  offenders,  22. 
REGULARITY  OF  OFFICIAL  ACTS 

presumption  of,  59. 
REIGNERUS  LAW  OF,  3. 
RELATIONSHIP 

when  grand  juror  disqualified  by,  80. 
RELIGIOUS  BELIEF 

of  grand  juror,  81. 
RELEVANT 

whether  books  and  papers  produced  are,  133. 
REPORT 

of  grand  jurors  upon  completion  of  work,  157. 

containing  libellous  statements,  158. 

whether  improper,  will  be  allowed  to  stand,  159. 
RESUBMISSION 

of  bill  to  grand  jury,  154. 
RETURN 

to  writ  of  venire,  49. 

may  be  signed  after  verdict,  50. 

may  be  amended,  50. 

necessity  of  affidavit  to,  54. 

challenge  to  array  for  irregularity  in,  66. 

of  grand  jury,  signature  of  foreman,  148,  150. 
REX  vs.  DICKINSON,  witnesses  not  sworn,  139. 
RHODE  ISLAND,  oath  of  grand  juror,  9411. 
RICE,  JUDGE,  Com.  v.  Sheppard,  114. 
ROLLO  carries  jury  system  into  Normandy,  3. 
ROLLS  OF  ITINERANT  COURTS,  n,  24. 
ROWAND  vs.  COM.     Second  bill  sent  to  grand  jury,  112. 
RULES  OF  EVIDENCE 

grand  jury  governed  by,  142. 
SAWYER,  SIR  ROBERT,  Attorney  General,  30. 
SCANDINAVIANS 

trial  by  jury  among,  3. 

nambda  used  by,  3. 

SCARLETT'S  CASE,  unlawfully  procuring  indictments,  42,  117. 
SEAL 

venire  should  be  under  seal  of  court,  48. 
SECRECY 

in  conveying  names  of  evil  doers  to  sheriff,  20. 

observed  by  amercers,  20. 

purpose  of  observing,  21,  116. 

did  not  apply  to  inquiries  made  by  justices,  21,  27. 

condemned  as  an  evil,  42. 

a  bar  to  inquiry  into  grand  jury's  action,  46,  118. 

14 


2IO  INDEX. 

The  references  are  to  pages. 
SECRECY— Continued. 

pledge  of,  in  ancient  oath,  99. 

provision  for,  in  modern  oath,  116,  162. 
ancient  views  regarding  provision  for,  118. 

when  oath  as  to,  not  violated,  120. 

clerk  of  grand  jury  to  testify  when,  120. 

district  attorney  bound  by  requirement  of,  120. 

in  hearing  witnesses,  127. 
SELECTION 

of  grand  jurors  now  regulated  by  statute,  47. 

from  improper  class  of  persons,  52. 
in  Pennsylvania,  52. 
in  Federal  Courts,  55. 
in  England,  57. 

effect  of  absence  of  officer  from,  58,  67. 

irregularity  in  making,  66,  67,  68. 

by  de  facto  officers,  58. 

from  registries  of  voters,  68. 

of  foreman,  90. 

of  clerk,  91. 
SECTATORES 

of  the  Anglo-Saxons,  '3. 

their  number,  3,  6. 

unanimity  not  required,  3. 

civil  causes  only  considered  by,  3. 

similarity  to  nambda,  4. 

SERGEANT,  KING'S.    See  KING'S  SERGEANT. 
SERGEANT 

inhabitants  of  hundred  enrolled  by,  20. 

to  choose  four  knights,  20. 
SHAFTESBURY'S  CASE,  29,  117,  129. 
SHAW,  CHIEF  JUSTICE,  charge  of,  43. 
SHERIDAN'S  TRIAL,  75. 
SHERIFF 

the  king's  officer,  8. 

authority  of,  in  the  county,  8. 

selected  from  justices  of  curia  regis,  8. 

to  seize  persons  of  evil  repute,  20. 

arbitrarily  increases  number  of  grand  jurors  to  twenty- four,  26. 

compelled  to  return  panel  as  reformed  by  justices,  30,  41. 

when  order  or  precept  not  served  upon,  48n. 

to  draw  and  summon  jurors,  48,  49,  54,  57,  59. 

to  make  return  to  writ,  49. 

need  not  swear  jurors  returned  according  to  law,  54. 

to  summon  talesmen,  50. 

incompetent  persons  summoned  by,  52. 


INDEX.  211 

The  references  are  to  paces. 
SHERIFF— Continued. 

cannot  delegate  authority  to  another,  58. 
absence  of,  when  selection  made,  67. 
SHERIFFS  ROLL,  reading  of,  13. 
SHERIFFS  TOURN  held  semi-annually,  4,  5. 
SHIPPEN,  MR.  JUSTICE,  34. 
SIGNATURE 

of  foreman  as  evidence  of  empaneling,  89, 

when  to  be  affixed  to  endorsement,  148. 
vouches  for  regularity  of  proceedings,  151. 
of  district  attorney  when  necessary,  134. 
SOLICITOR  GENERAL 

no  such  officer  in  Tennessee,  134. 
SOUTH  CAROLINA 

qualifications  of  grand  jurors,  62. 
SOUTH  DAKOTA,  oath  of  grand  juror,  p8n. 
SPELLING 

error  in,  name  of  grand  juror,  49. 
STANDING  ASIDE 

of  grand  jurors,  83. 

STATE  vs.  COWAN,  control  of  court  over  grand  jurors,  165. 
STATES 

may  prosecute  by  information,  33. 

prosecution  of  offences  by  information  in,  115. 

Western,  abolition  of  grand  jury  in,  44. 

Eastern,  conservatism  of,  on  grand  jury,  44. 

qualifications  of  Federal  grand  jurors  determined  by  laws  of,  63. 
STATE'S  ATTORNEY 

cannot  challenge  panel,  70. 
STATUTE 

of  Ethelred  II,  2,  3,  5. 

3  Henry  VIII,  c.  12,  30,  41. 

n  Henry  IV,  c.  9,  61. 

6  George  IV,  c.  50,  57,  61. 

when  held  to  be  director",  49,  81,  136. 

selection  of  grand  jurors  under  unconstitutional,  58. 

grand  jurors  irregu'^rly  drawn  under  directory,  57,  81. 

disqualification  imposed  by,  73. 

exempting  persons  from  grand  jury  service,  72. 

changing  method  of  drawing  and  summoning,  89. 

of  limitations,  103. 

as  to  disclosure  of  evidence,  120. 

imposing  additional  duties  on  grand  jurors,  121. 

allowing  eight  grand  jurors  to  concur  on  indictment  unconstitu- 
tional, 14711. 


212  INDEX. 

The  references  are  to  pages. 
ST'ENOGRAPHER 

presence  of  in  grand  jury  room,  139. 
STEPHEN  COLLEGE,  case  of,  28. 
STIPENDIARY  MAGISTRATES.    See  MAGISTRATES. 
STRANGER 

presence  of,  in  grand  jury  room,  139. 
SUBPOENA 

attendance  of  witnesses  procured  by,  104,  132. 

duces  tecum  to  compel  production  of  books  and  papers,  133. 
SUBSTANCE 

matter  of,  statutory  disqualification  is  a,  74. 

amendment  of  matter  of,  not  permitted,  154,  155. 
SUBSTITUTES 

not  to  be  received  for  grand  jurors,  51. 
SUMMERHAYES  CASE,  contempt  of  court,  165. 
SUMMONED 

number  of  grand  jurors,  45. 

at  fixed  time,  49,  68. 

when  improper  persons,49. 

when  talesmen  should  be,  50. 

improper  persons,  as  talesmen,  52. 

number  of  talesmen  to  be,  54. 

implied  power  of  court  to  order  grand  jurors,  52. 

immaterial  how  grand  juror,  54. 

grand  juror  becoming  competent  after  being,  76. 

by  whom  grand  jurors,  59. 

how  Federal  grand  jurors  are,  55. 

from  part  of  the  district,  56,  57. 

under  English  statutes,  57. 

removal  from  domicile  after  being,  81. 

foreman  selected  from  persons,  90. 

witnesses  before  grand  jury,  how,  101. 
SUPPLEMENTAL  CHARGE 

when  delivered,  125. 

at  whose  request  made,  125. 

in  Aaron  Burr's  Case,  125. 

Judge  Cranch's  view,  126. 
SUSPICION 

presentment  on,  15,  19. 

Glanville  comments  on  presentment  on,  15.' 

of  petit  juror  by  defendant  and  townspeople,  22. 
SWORN 

how  grand  jurors  are,  91. 

grand  jurors  not,  in  any  particular  cause,  122.     . 

objections  before  grand  jurors,  64,  74n. 
after  grand  jurors,  64.  73,  85. 


INDEX.  213 

The  references  are  to  pages. 
SWORN— Continued. 

grand  jurors,  as  witnesses,  1320. 

witnesses  to  be,  137. 

when  witness  not,  138,  146. 

indictment  need  not  show  that  witnesses,  138. 

TALES 

not  to  issue  when  array  quashed,  52. 

TALES  DE  CIRCUMSTANTIBUS.    See  TALESMEN. 
TALESMEN 

when  summoned,  50. 

venire  not  to  issue,  51. 

number  to  be  summoned,  54,  56. 

necessity  for,  to  be  shown  by  record,  51. 

may  be  summoned  when  all  jurors  disqualified,  52. 

selected  from  improper  persons,  52. 

names  not  to  be  furnished  by  judge,  51. 

designated  by  court  to  fill  vacancy,  84, 

may  be  appointed  foreman,  gon. 

in  Federal  Courts,  55. 

TAMPERING  WITH  WITNESSES,i43. 

TANEY,  CHIEF  JUSTICE,  evidence  necessary  to  convict,  102. 

TAXES 

payment  of,  as  grand  juror's  qualification,  63,  81. 

grand  jurors  to  fix  rate  of,  121. 

as  board  of  revision  of,  122. 
TECHNICAL  FORM 

in  presentment,  131. 
TENNESSEE 

qualifications  of  grand  jurors,  62. 

grand  juror  related  to  accused,  81. 

oath  of  grand  juror,  Qsn. 

inquisitorial  powers  of  grand  jurors,  104. 

investigation  of  sufficiency  of  bonds  in,  122. 

endorsement  of  prosecutor's  name,  135. 
TERM 

two  grand  juries  at  same  term,  89. 

TERRITORIAL  JURISDICTION 

inquiry  within,  103. 
TERRITORY 

admitted  as  state,  how  grand  jurors  empaneled,  89. 
TESTE 

venire  to  bear,  48. 

may  be  amended,  48. 


214  INDEX. 

The  references  are  to  pages. 
TESTIMONY 

witnesses  in  contempt  for  refusing  to  give,  88,  133. 

additional,  may  be  given  when  required,  104. 

presentment  made  without  hearing,  132. 

indictment  found  upon  unsworn,  138,  146. 

voluntary,  of  defendent,  144. 

of  defendant  involuntarily  given  against  himself,  145. 

when  to  be  kept  secret,  118. 

of  grand  jurors,  when  received,  118. 

of  clerk  of  grand  jury,  120. 

of  district  attorney,  120. 

district  attorney  not  to  comment  on,  128. 
TEXAS,  oath  of  grand  juror,  gsn. 
THANES 

presentment  by,  3,  8. 

duty  of,  to  accuse,  3. 

oath  of  twelve,  98. 

THAYER,  PROF. 

on  effect  of  Assize  of  Qarendon,  18. 

order  of  Lateran  Council,  18. 
TOURN.    See  SHERIFF'S  TOURN. 
TOWN  MEETING  in  Connecticut,  122. 
TOWNSHIPS 

their  part  in  presentments,  14,  16. 

did  not  act  in  all  cases,  14,  16. 

until  inquest  had  presented,  15,  16. 

not  mentioned  by  Glanville,  14. 

identity  with  four  freemen  of  every  vill,  15. 

no  part  of  the  inquest,  15. 

power  of,  16. 

use  of,  not  obligatory,  16. 

limited  to  concurrence  in  finding  of  inquest,  16. 

Mr.  Forsyth's  reference  to,  16. 

part  of  trial  jury,  23. 
TOWNSPEOPLE.    And  see  TOWNSHIPS. 

challenge  of  juror  by,  22. 

oath  taken  by,  22. 

form  part  of  trial  jury,  23. 
TREASON 

indictment  for  when  quashed,  144. 
TRESPASS 

when  prosecutor's  name  must  be  endorsed,  136. 
TRIERS 

on  challenge  for  favor,  82. 
TRIAL  JURY.    See  PETIT  JURY. 


INDEX.  215 

Tbe  references  are  to  pages. 
TRIAL 

by  battle,  3,  6,  7,  10,  21. 
rise  of,  9. 

when  awarded  or  refused,  10. 
exceptions  to,  17. 
right  of  appellee  to  decline,  17. 
in  real  actions,  17. 

and  country,  appellees  election  between,  21. 
and  ordeal,  appellees  election  between,  10,  12. 
last  instance  of  in  England,  13. 
abolished  by  59  Geo.  Ill,  c.  46,  13. 
by  ordeal,  when  awarded  or  refused,  10. 
abolished,  18. 
of  fire  or  water,  4. 

prescribed  by  Assize  of  Qarendon,  7,  8. 

Assize  of  Northampton,  9. 
by  corsned  or  morsel  of  execration,  4. 
by  compurgation,  4. 

disappearance  of  in  criminal  cases,  8. 

TRIAL  BY  JURY 

among  Scandinavians,  3. 

introduced  into  England,  6. 

first  use  of  in  criminal  cases,  17. 

provisions  of  Magna  Charta  as  to,  17. 

takes  place  of  ordeal  upon  presentments,  18. 

mentioned  by  Bracton,  21. 

described  by  Bracton,  22. 

choosing  of,  by  appellee,  21. 

upon  appeal  made  by  woman,  21. 

not  awarded  upon  appeal  of  felony,  21. 

removal  of  jurors  on  suspicion,  22. 

challenge  of  juror  for  cause,  23. 

afforciament  in,  24. 

dispensed  with  in  New  Haven  Colony,  3in. 

TRUE  BILL 

found  upon  concurrence  of  twelve  jurors,  56. 
endorsement  of,  as  evidence  of  empaneling,  89. 
evidence  to  justify  finding,  102,  105,  141. 
when  grand  jury  may  find,  146. 

number  to  concur  in  finding,  147. 
as  to  one  or  more  counts,  147. 
cannot  be  found  for  part  of  a  count,  147. 
as  to  some  of  the  defendants,  148. 
omission  of  words,  149. 
when  printed  as  endorsement  on  bill,  151. 


2l6  INDEX. 

The  references  are  to  pages. 

UNANIMITY 

of  grand  jurors  when  requisite,  26,  27. 

of  petit  jurors,  26. 

UNCONSTITUTIONAL  STATUTE.    See  STATUTE. 
UNITED  STATES 

Constitution  omits  indictment  by  grand  jury,  32. 
remedied  by  Amendment  V,  32. 

Fifth  Amendment  applies  only  to  offences  against, 

Sixth  Amendment  to  Constitution,  57. 

courts,  grand  jury  in,  55. 

challenge  to  array  in,  when  made,  69. 

workmen  in  arsenals  and  armories  exempt,  73. 

rebellion  against,  will  disqualify,  63,  73. 

knowledge  of  grand  jurors  of  offence  against,  109. 
UTAH 

unlawful  cohabitation  in,  82n. 

oath  of  grand  juror,  Q7n. 
VACANCY 

in  grand  jury,  how  filled,  84. 
VARIANCE 

in  name  of  foreman,  149.  • 

between  indictment  and  evidence,  152. 
VENIRE 

issues  upon  precept,  48,  55. 

command  of,  48. 

should  be  under  seal  of  court,  48. 

may  be  amended,  48. 

requisites  of,  49. 

return  of  sheriff  to,  49. 

not  to  issue  to  summon  talesmen,  51. 

to  issue  when  array  quashed,  52. 

array  challenged  for  irregularity  in,  66. 

selection  of  foreman  from  whole,  9on. 

shown  by  records  of  court,  151. 
VERDICT 

sheriff's  return  signed  after,  50. 

influenced  by  incompetent  evidence,  145. 

objection  made  before,  149. 
VERMONT 

oath  of  grand  juror,  94n. 

act  as  excise  officers  in,  122. 
VILL 

four  freemen  of,  14,  15. 
VIRGINIA 

oath  of  grand  juror,  95n. 

endorsement  of  prosecutor's  name,  135. 


INDEX.  217 

The  references  are  to  pages. 

VITIATE 

presence  of  disqualified  person  will,  87,  139. 
VOID 

disregard  of  statute  will  make  indictments,  88. 

unlawfully  empaneling  grand  jury  will  make  indictments,  8g. 
VOIR  DIRE 

grand  jurors  cannot  be  examined  on,  81. 
VOTE 

Negroes  denied  right  to,  67. 

grand  jurors  not  to  testify  as  to,  118,  119. 

presence  of  district  attorney  during  taking  of,  128. 
VOTER 

grand  juror  must  be  qualified,  63,  77. 
VOTERS 

selection  of  grand  jurors  from  registries  of,  68. 
VOTING 

unauthorized  person  participating  in,  139. 
WAGER  OF  BATTLE.    See  TRIAL  BY  BATTLE. 
WAIVER 

of  right  of  challenge  by  silence,  71,  72,  87. 
to  exemption  from  service,  72. 
by  not  objecting  before  plea,  87. 
WAPENTAKE.    See  HUNDRED. 
WASHINGTON 

qualifications  of  grand  jurors,  63. 

women  not  qualified  as  grand  jurors,  63. 

oath  of  grand  juror,  97n. 
WEEKLY  JOURNAL,  in  Zenger's  Case,  32. 
WEREGILD 

custom  of,  4. 

disuse  of,  9. 

WESTERN  STATES,  abolition  of  grand  jury  in,  44. 
WEST  VIRGINIA 

qualifications  of  grand  jurors  in,  62. 

oath  of  grand  jurors,  9611. 

WHARTON,  DR.,  control  of  court  over  grand  jury,  164. 
WHEEL 

irregularity  in  keeping  jury,  66,  67. 
WHITE,  JUDGE,  Rowand  v.  Com.,  112. 
WILDE,  JUDGE,  Com.  v.  Knapp,  136. 
WILLIAM  OF  ORANGE,  31. 
WILMORE,  MR.,  forced  to  flee  beyond  seas,  29. 
WILSON,  IN  RE,  140  U.  S.  575,  47,  56. 


2l8  INDEX. 

The  references  are  to  pages. 
WILSON,  JUDGE 

oath  of  grand  juror,  94. 

power  of  grand  jury,  100. 

charge  to  grand  jury,  124. 

WINDHAM,  SIR  HUGH,  fining  grand  jurors,  164. 
WISCONSIN,  oath  of  grand  juror,  o6n. 
WITNESSES 

four  townships  acted  as,  16. 

trial  jurors  as,  23,  24. 

summoning  of,  before  grand  jury,  101,  104,  132. 

appearing  before  grand  jury,  100. 

for  prosecution  only  heard,  42,  103,  140. 

to  be  sworn,  137. 

manner  of  swearing,  137. 

when,  not  sworn,  138,  146. 

examination  of,  by  district  attorney,  139. 
by  private  counsel,  129. 
by  grand  jurors,  127. 
in  open  court,   117,   127. 

only  one  present  at  a  time,  139. 

grand  jurors  may  require  production  of  additional,  104. 

indictment  found  upon  evidence  of  interested,  143. 

incompetent,  143,  144. 

two,  on  indictment  for  treason,  144. 

must  all  be  examined  before  bill  ignored,  146. 

disclose  other  offences,  no. 

committing  perjury  before  grand  jury,  108,  118. 

cannot  be  compelled  to  criminate  themselves,  133. 

refusing  to  testify  in  contempt,  88,  120,  133. 

commitment  of,  I32n. 

may  disclose  what  transpires  in  grand  jury  room,  I2O. 

presentment  not  based  upon  testimony  of,  132. 

failure  to  hear,  in  support  of  indictment,  132. 

list  of,  furnished  to  defendant,  136. 

names  of,  endorsed  on  bill,  135. 

tampering  with,  143. 

testifying  under  objection,  145. 

convicted  of  infamous  crime,  143. 
perjury,  144. 

punishment  of,  104,  165. 
WOMAN,  appeal  made  by,  10,  n,  21. 
WOMEN 

not  qualified  as  grand  jurors,  63. 

unlawful  cohabitation  with,  in  Utah,  82. 

married,  when  incompetent  as  prosecutrix,  I35n. 
WOODWARD,  MR.  JUSTICE,  Rowand  v.  Com.,  112. 


INDEX.  219 

The  references  are  to  pages. 
WYOMING,  oath  of  grand  juror,  9711. 
WRITS 

awarding  inquest,  17. 

not  to  be  bought  or  sold,  17. 
provisions  of  Magna  Charta  as  to,  17. 
awarding  assize,  17. 
of  venire  facias,  48. 

return  of  sheriff  to,  49. 
of  tales  de  circumstantibus,  54. 
ZENGER,  case  of  John  Peter,  32. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


MAR  2  1  1972 

30  1973 

APR  1  o  7973 
19  1974 


m 

HAR22  1976 


Form  L9-Series  4939 


